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SOME  ACCOUNT 


OF  THE  WORK  OF 


STEPHEN  J.  FIELD 


AS  A 


LEGISLATOR,  STATE  JUDGE,  AND  JUDGE  OF  THE 
SUPREME  COURT  OF  THE  UNITED  STATES. 


WITH  AX 


INTRODUCTORY  SKETCH 


BY 

JOHN  NORTON  pSmEROY,  LL.D., 

Professor  of  Law  ix  the  Hastixgs  Law  Department  of 
the  University  of  California. 


1881. 


Copyright,"  1882,  by  S.  B.  Smith. 


I N DEX. 


Introductory  Sketch  by  Prof.  Pomeroy  : Pages. 

1.  Early  life  of  Judge  Field.. 6-13 

2.  His  work  as  a Legislator 13-22 

3.  His  work  as  a member  of  the  California  Supreme  Court 22-45 

4.  His  work  as  a member  of  the  U.  S.  Supreme  Court 45-61 

Note  by  the  Editors 63 

Judge  Field  as  a Legislator 3 

«.  Legislation  for  the  protection  of  miners  in  their  mining 

claims. 3-8 

b.  Legislation  for  the  exemption  from  forced  sale  of  tools  and 

other  personal  property  of  debtors 8-11 

c>  General  Legislation  secured  by  him 11-14 

Judge  Field  as  a member  of  the  Supreme  Court  of  Cali- 
fornia : 

1.  His  election 15r 

2.  Estimate  of  his  judicial  career  on  that  bench  by  Judge 

Baldwin...  16-19 

3.  LTnsettled  condition  of  land  titles  in  the  State  from  three 

canses : 

a.  Extent  and  indefinite  boundaries  of  Mexican  grants..  20-24 

b.  Occupation  of  the  public  lands  by  settlers  in  ad- 

vance of  legislation  by  Congress 24-25 

c.  Claim  of  the  State  to  own  the  minerals  in  the  soil..  26-29 

4.  His  opinions  on  : 

a.  Patents  for  lands  by  the  United  States 30 

b.  Municipal  corporations 30 

«.  Mortgages  and  other  subjects 33 

d.  A Sunday  law 34-37 

e.  The  non-receivability  of  Legal-Tender  notes  for 

taxes.. 38 


4 


Judge  Field  as  a member  of  the  Supreme  Court  of  the 
United  States:  Pages. 

1.  His  appointment 39 

2.  His  opinions  on — 

1.  The  Milligan  case 4i>-42 

2.  The  Cummings  case 42-45 

3.  The  Garland  case 45-46 

4.  The  McArdle  case 46-50 

5.  The  Confiscation  cases 50-59 

6.  Cases  on  Pardon  and  Amnesty 59-65 

7.  Legal-Tender  cases  and  Confederate  notes 65-86 

8.  The  legislative  power  of  the  Insurgent  States  during 

the  civil  war,  and  the  extent  to  which  the  Confed- 
erate Government  could  be  regarded  as  a de  facto 
government 87-9C 

9.  Protection  from  military  arrest  and  imprisonment, 

during  the  war,  of  citizens  not  in  the  military  ser- 
vice of  the  United  States,  where  the  Civil  Courts 
were  open , 96-105 

10.  Protection  to  officers  and  soldiers  of  the  United 

States  army  in  the  enemy’s  country  during  the 

war 105 

a.  Coleman  vs.  Tennessee 106-112 

b.  Dow  vs.  Johnson 112-119 

11.  Protection  of  sealed  matters  in  the  mails  from  in- 

spection of  officials  of  the  Post  Office 119-124 

12.  The  Fourteenth  Amendment  and  the  Slaughter- 

House  cases 124-156 

13.  The  power  of  the  State  to  control  the  compensation 

receivable  for  the  use  of  private  property  and  ser- 
vices in  connection  with  it.  The  Chicago  Ware- 
house cases 156-173 

14.  The  relation  between  the  General  Government  and 

the  State  Governments : 

a.  The  Virginia  Jury  cases 173-201 

b.  The  Election  cases  from  Ohio  and  Maryland...  201-216 

15.  Corporations — cases  relating  to  their  powers  and 

liabilities : 

a.  Paul  vs.  Virginia 216-219 

b.  Marsh  vs.  Fulton  County 219-221  . 

c.  Tomlinson  vs.  Jessup 220 

d.  The  Delaware  Railroad  Tax  Case.... 221-222 

e.  Board  of  Commissioners  of  Tippecanoe  County 

vs.  Lucas,  Treasurer 222 


D 


Pages. 

/.  Broughton  vs.  Pensacola 222-223 

g.  U.  S.  vs.  New  Orleans 223-224 

li.  Pensacola  Tel.  Co.  vs.  Western  Union  Tel.  Co...  225-233 

i.  Union  Pacific  K.  Co.  vs.  United  States 233-255 

16.  Other  cases  in  the  Supreme  Court... 256-258 

17.  Inter-state  commerce 259 

ft.  Weltoii  vs.  Missouri 260-264 

b.  Sherlock  vs.  Ailing 264-268 

c.  County  of  Mobile  vs.  Kimball 268-273 

18.  The  power  of  taxation  by  the  General  and  State 

Governments : 

State  tax  on  foreign -h eld  bonds 273-283 

19.  The  trust  character  of  directors  of  corporations  : 

Wardell  vs.  Union  Pacific  E.  Co.... 283-288 

20.  The  use  of  running  waters  on  the  public  lands 288 

a.  Atchison  vs.  Peterson 289-294 

b,  Basey  vs.  Gallagher 294-295 

Cases  in*  the  Circuit  Court  of  the  United  States: 

1.  to.  S.  vs.  Greathouse 296-305 

2.  U.  S.  vs.  Knowles 305-309 

3.  U.  S.  vs.  Smiley 309-313 

4.  Ex-parte  Cavanaugh  on  habeas  corpus 314 

5.  Hardy  vs.  Harbin 315 

6.  Hall  vs.  Unger 321-328 

7.  Montgomery  vs.  Beavans 328-335 

8.  United  States  vs.  Flint,  Throckmorton,  and  Carpentier...  335-349 

9.  The  Eureka  ease 350-360 

10.  The  municipal  lands  of  San  Francisco.  The  Pueblo  ease...  360-376 

11.  The  legislation  of  California,  State  and  municipal,  against 

the  Chinese 376-384 

a.  The  case  of  Ah  Fong  on  habeas  corpus 384-394 

b.  Ah  Kow  vs.  Nunan 398-405 

12.  Other  cases  in  the  Circuit  Court 409-410 

The  Electoral  Commission  of  1877 : 

1.  The  Florida  case 415-430 

2.  The  Louisiana  case i 430-432 

3.  The  Oregon  case 432-439 

4.  The  South  Carolina  case 439-440 

5.  General  disappointment  of  the  country  at  the  action  of 

the  Commission,  from  the  Public  Ledger  of  Philadel- 
phia  440-442 


I 


APPENDIX. 

Opinions  of  the  Supreme  Court  in  the  Test-Oath  cases,  de- 
livered by  Judge  Field:  Pages. 

1.  In  the  Cummings  case 445 

2.  In  the  Garland  ease 457 


INTRODUCTORY  SKETCH. 


I purpose  to  analyze  and  describe  the  work  and  its  re- 
sults of  one  who,  to  an  extraordinary  degree,  has  impressed 
his  own  conceptions  upon  the  jurisprudence  of  the  coun- 
try— as  much  so,  perhaps,  as  any  living  jurist  of  America. 
To  those  who  are  informed  as  to  the  extent  and  variety 
of  his  official  labors,  this  will  not  appear  an  extravagant 
opinion;  and  its  correctness  will  be  demonstrated  by  the 
facts  which  I shall  produce. 

The  subject  of  this  memoir  belongs  to  a remarkable 
family — a family  which  well  illustrates  the  effects  of 
American  civilization  and  institutions  working  upon  the 
best  New  England  character.  Commencing  their  careers 
with  no  advantages  except  the  early  training  of  God- 
fearing parents,  and  the  education  afforded  by  the  coun- 
try academy  and  college,  the  living  members  of  the 
family,  consisting  of  the  brothers  David  Dudley  Field, 
Cyrus  West  Field,  Stephen  Johnson  Field,  and  Henry 
Martyn  Field,  have  all  risen  to  distinction.  Of  the  first 
two  named  brothers  the  reputation  is  world-wide;  in  fact, 
David  Dudley  Field  and  Cyrus  W.  Field  are  even  better 
known  and  more  honored  throughout  Europe  than  in  their 
own  country.  If  the  fourth  brother  has  attained  to  a less 
extensive  fame,  it  is  because  as  a clergyman  he  has  confined 
his  activities  to  an  American  church,  within  which  he  has 


8 


a high  position  and  has  long  wielded  a powerful  influence 
as  the  editor  of  one  of  the  leading  religious  papers  of  the 
country.  Of  David  Dudley  Field  and  Cyrus  W.  Field  it 
is  unnecessary  to  speak.  The  former,  hy  his  reforming 
measures  in  the  systems  of  procedure  in  the  courts,  has  rev- 
olutionized the  modes  of  administering  justice,  and  placed 
them  upon  a foundation  of  simplicity  and  truth  in  all  those 
nations  and  regions  of  the  world  where  the  English  common 
law  has  been  adopted.  The  latter,  by  his  far-seeing  sagacity, 
untiring  energy,  and  deep  enthusiasm,  has  been  the  leader 
in  accomplishing  that  triumph  of  science  and  commerce 
combined  by  which  all  parts  of  the  world  are  united,  time 
and  space  are  annihilated,  nations  are  made  one,  and  the 
vast  world-wide  movements  and  transactions  of  business, 
trade,  and  commerce  are  controlled.  The  work  of  the 
third  brother,  who  is  the  subject  of  this  sketch,  has  been 
restricted  to  the  legislation  and  jurisprudence  of  his  own 
country,  but  in  some  respects  it  is  equal  in  importance  and 
variety  to  that  accomplished  by  either  of  his  brothers. 

Stephen  Johnson  Field  was  born  in  Haddam,  Connecti- 
cut, on  the  4th  of  November,  1816.  His  grandfathers  on 
both  Ins  paternal  and  maternal  sides  served  as  officers  in 
the  Revolutionary  War,  and  were  descended  from  a Puri- 
tan stock,  their  ancestors  being  among  the  earliest  settlers 
of  New  England.  In  1819,  when  he  was  about  three  years 
old,  his  father,  who  was  a Congregational  clergyman, 
removed  to  Stockbridge,  Massachusetts,  and  Stephen’s 
childhood  and  early  youth  were  there  passed  in  what  has 
become  one  of  the  most  famous  and  classic  spots  of  New 
England.  At  the  age  of  thirteen,  a step  was  taken  by 
him  which  undoubtedly  produced  a deep  and  lasting  im- 
pression upon  his  intellectual  and  moral  character,  al- 
though its  effects  upon  his  external  life  were  temporary 
and  trifling.  In  1829  an  elder  sister  married  the  Rev.  Jo- 
siah  Brewer.  Mr.  and  Mrs.  Brewer,  acting  under  the 
auspices  of  The  Ladies’  Greek  Association  in  New  Haven, 
soon  afterwards  sailed  for  the  Levant,  with  the  intention 


9 

of  establishing  schools  in  Greece  for  the  education  of  fe- 
males. They  invited  Stephen  to  accompany  them.  Ilis 
brother,  David  Dudley,  who  as  the  eldest  of  the  family 
took  a deep  and  active  interest  in  promoting  the  welfare 
of  the  younger  members,  advised  his  going  for  the  pur- 
pose of  studying  the  Oriental  languages,  thinking  that 
he  could  thereby  qualify  himself  for  a professorship  of 
Oriental  languages  and  literature  in  an  American  Uni- 
versity. With  this  design  he  accompanied  his  sister 
and  brother-in-law.  They  sailed  December  10th,  1829, 
and  arrived  at  Smyrna,  February  5,  1830.  Mr.  Brewer 
there  changed  his  original  plan  and  established  a.school  at 
Smyrna.  Stephen  remained  in  the  Levant  two  and  a half 
years.  In  addition  to  the  time  spent  in  Smyrna  he  visited 
many  of  the  islands  of  the  Grecian  Archipelago,  and  fa- 
mous cities  of  Asia  Minor,  and  passed  one  winter  in 
Athens  in  the  family  of  the  Rev.  John  Hill,  the  well- 
known  American  missionary  of  the  Episcopal  Church. 
Mr.  and  Mrs.  Hill  had  been  on  a visit  to  Smyrna,  and  Mr. 
Hill  being  detained  by  some  matters  of  business,  Mrs.  Ilill 
returned  to  Athens  without  him.  Stephen  accompanied 
her  as  her  escort  and  remained  at  Athens  until  Mr.  Hill’s 
return.  During  this  residence  in  the  East,  Stephen  learned 
the  modern  Greek  so  that  he  was  able  to  write  and  to 
speak  it  with  ease,  and  acquired  some  knowledge  of  the 
French,  Italian,  and  Turkish.  But  the  most  important  and 
lasting  result  of  the  time  thus  spent  in  the  East  during 
the  plastic  period  of  his  youth,  was  a moral  one;  and  the 
lesson  which  he  there  learned  was  that  of  religious  tol- 
eration. He  had  been  brought  up  as  a boy  in  the  strict- 
est tenets  of  Calvinism.  As  he  says  of  himself,  “he  had 
been  taught  to  believe  that  the  Hew  England  Puritans 
possessed  about  all  the  good  there  was  in  the  religious 
world,”  and  to  look  with  distrust  upon  all  the  great  his- 
torical churches  which  they,  with  one  sweeping  condem- 
nation, called  Nominal  Christians.  During  his  Eastern  life 
lie  was  thrown  into  close  contact  with  Roman  Catholics, 

B 


10 


members  of  the  Greek  Church,  and  Armenians,  as  well 
as  with  Mahometans  ; he  saw  examples  of  faith,  devotion, 
piety,  and  virtue  among  them  all,  and  was  profoundly 
impressed  by  them.  Indeed,  his  views  underwent  an  en- 
tire revolution;  and  there  was  laid  the  foundation  of  that 
broad  tolerance  which  has  ever  since  been  a distinguish- 
ing element  of  his  character.* 

He  returned  to  the  United  States  during  the  winter  of 
1832-3;  entered  Williams  College  in  the  fall  of  1833,  and 
was  graduated  in  1837,  having  obtained  the  highest  honors 
of  his  class — the  Greek  oration  at  the  Junior  Exhibition, 
and  the  valedictory  oration  at  the  Commencement.  He 
entered  upon  the  study  of  the  law  during  the  Spring  of  1838, 
in  the  office  of  his  brother,  David  Dudley,  in  Yew  York 
City,  and  was  admitted  to  the  Bar  in  1841.  A portion  of 
this  interval  he  spent  in  Albany,  giving  instruction  to 
classes  of  the  Albany  Female  Academy,  and  pursuing  his 


* Stephen  was  in  Smyrna  when  the  dreaded  plague  visited  the  city  in  the  spring 
of  1831.  Every  one  then  avoided  his  neighbor  as  if  contagion  would  follow  the  slight- 
est touch.  Says  a writer  describing  the  soenes : “ If  two  men  met  in  the  street,  each 
drew  away  from  the  other,  as  if  eontaot  were  death.  Sometimes  they  hugged  the 
walls  of  the  houses,  with  canes  in  their  hands  ready  to  strike  down  any  one  who 
should  approach.  All  papers  and  letters  coming  through  the  mails  were 
smoked  and  dipped  in  vinegar  before  they  were  delivered,  lest  they  might  oommu- 
nicate  infection.  Even  vegetables  were  passed  through  water  -before  they  were 
taken  from  the  hands  of  the  seller.  Terrible  tales  were  told  of  scenes  when  guests 
were  carried  away  dead  from  the  table,  and  servants  dropped  down  while  waiting 
upon  it.  On  every  countenance  was  depicted  an  expression  of  terror.”  M r.  Brewer 
remained  in  the  city  for  two  or  three  weeks,  and  then  left  with  his  family  in  a 
vessel. 

In  the  Fall  of  the  same  year  Smyrna  was  visited  with  the  Asiatic  cholera.  Hun- 
dreds died  every  day  from  its  attacks,  and  thousands  left  the  city  and  camped  in  the 
fields.  Mr.  Brewer  gave  his  time  to  administering  to  the  sick  and  dying.  With  his 
pockets  filled  with  medicines  he  went  through  the  lanes  and  alleys  of  the  city  on 
his  errand  of  mercy.  Stephen,  with  his  pockets  filled  in  the  same  way,  accompa- 
nied him  in  all  his  rounds.  Commodore  J.  E.  DeKay,  in  a work  entitled  “ Turkey 
in  ’31  and  ’32,”  thus  speaks  of  the  heroic  devotion  of  Mr.  Brewer  in  those  terrible 
scenes,  as  follows: 

“ The  efforts  of  the  physicians  at  Smyrna  during  the  fearful  season  of  cholera, 
were  nobly  seconded  by  many  of  the  foreign  missionaries.  Among  these  I heard 
the  labors  of  Mr.  Brewer  everywhere  spoken  of  in  terms  of  admiration,  Furnished 
with  all  the  requisite  remedies,  he  scoured  every  lane  and  alley,  proclaiming  his 
benevolent  intentions,  and  distributing  even  food  to  the  needy.  Let  history,  when 
it  repeats  the  story  of  the  good  Bishop  of  Marseilles — who,  after  all,  was  merely  a 
soldier  at  his  post — also  record  the  benevolence  and  the  proud  contempt  of  danger 
and  of  death  evinced  by  an  American  stranger  within  the  pestilential  walls  of 
Smyrna.” 


11 


studies  in  the  office  of  John  Van  Boren,  then  the  Attorney- 
General  of  the  State j and  at  the  summit  of  his  brilliant 
hut  disappointing  career.  On  being  admitted  to  the  Bar, 
he  was  taken  into  partnership  by  his  brother  in  New 
York  City,  which  continued  until  the  year  1848.  On 
the  breaking  out  of  the  Mexican  war,  and  again  at  its 
close,  his  brother  advised  him  to  remove  to  California, 
making  generous  offers  of  pecuniary  means  for  invest- 
ment in  the  purchase  of  land,  but  Stephen  had  a strong 
desire  to  visit  Europe,  and  declined  the  proposal.  He 
sailed  for  Europe  in  June,  1848,  with  the  design  of  making 
an  extensive  tour.  While  in  Paris,  the  following  winter, 
he  read  the  annual  message  of  President  Polk  to  Congress, 
which  officially  announced  the  discovery  of  gold  in  Cali- 
fornia. He  then  felt  some  regrets  that  he  had  not  acted 
upon  the  advice  of  his  brother,  but  nevertheless  concluded 
to  visit  the  most  interesting  parts  of  Europe  before  return- 
ing. He  did  so,  and  returned  to  New  York  in  the  Fall  of 
1849,  arriving  on  the  1st  of  October.  Soon  afterwards  he 
left  for  California. 

As  I do  not  intend  to  write  a life  of  Judge  Field,  I shall 
not  attempt  to  describe  the  incidents  and  adventures  of 
his  California  career.  It  will  be  sufficient  to  mention  the 
most  important  events,  so  as  to  exhibit  the  more  clearly 
his  public  and  official  labors,  and  to  tix  the  date  of  the 
successive  steps  which  he  took  until  he  reached  his  present 
high  position  as  a member  of  the  Supreme  Court  of  the 
United  States. 

He  arrived  in  San  Francisco  on  the  28th  of  Decem- 
ber, 1849,  with  hardly  any  funds,  and  with  no  resources 
except  untiring  energy  and  capacity  for  work,  great  in- 
tellectual ability,  natural  and  cultivated,  the  well-laid 
foundation  of  legal  learning,  and  the  high  hopes  of  open- 
ing manhood.  In  January,  1850,  he  removed  to  a settle- 
ment just  commenced  which  became  the  important  inland 
city  of  Marysville.  Here  he  established  himself,  and  the 
place  continued  to  be  his  home  during  the  whole  of  his 


12 


professional  life  in  California,  until  1857.  He  was  at  once 
elected  the  first  alcalde  of  the  new  town,  and  held  the 
office  until  the  organization  of  the  State  government,  and 
the  introduction  of  American  institutions.  In  the  Fall  of 
1850,  lie  was  elected  a member  of  the  Assembly,  the  pop- 
ular branch  of  the  State  Legislature,  from  the  county  in 
which  Marysville  was  situated.  This  Legislature  com- 
menced its  session  on  the  first  Monday  of  January,  1851, 
and  he  was  confessedly  the  leading  and  most  efficient  mem- 
ber of  the  body;  many  of  its  most  important  and  perma- 
nent acts  were  planned,  proposed,  and  adopted  through  his 
agency.  At  the  expiration  of  the  session  he  returned  to 
Marysville,  resumed  the  practice  of  his  profession,  and 
soon  attained  the  recognized  position  of  one  of  the  fore- 
most lawyers  in  the  State,  and  so  continued  until,  in  the 
Fall  of  1857,  he  was  elected  a Justice  of  the  State  Supreme 
Court  for  the  term  of  six  years,  commencing  on  the  first 
of  January,  1858.  At  this  election  98,228  votes  in  all 
were  cast ; of  these  he  had  55,216,  one  of  his  competi- 
tors, 18,944,  and  the  other,  19,068,  so  that  he  received  a 
majority  of  more  than  36,000  over  each  of  the  other 
candidates,  and  of  17,204  over  both  combined.  A va- 
cancy occurring  on  the  Bench  through  the  death  of  one 
of  the  justices,  he  was  appointed  by  the  Governor  for 
the  unexpired  term,  and  took  his  seat  on  the  13th  of  Octo- 
ber, 1857.  On  the  resignation  of  Chief  Justice  Terry,  in 
September,  1859,  he  became  Chief  Justice.  He  remained 
in  this  high  office  until,  in  1863,  he  was  removed  to  the 
still  higher  position— a seat  in  the  Supreme  Court  of  the 
United  States.  On  March  3d,  1863,  a statute  of  Congress 
was  approved  by  the  President  providing  for  an  additional 
justice  of  the  Supreme  Court,  and  making  the  States  on 
the  Pacific  Coast  a new  circuit.  On  the  recommendation 
of  the  entire  delegation  in  Congress  from  those  States, 
consisting  of  four  Senators  and  four  Representatives, — of 
whom  five  were  Democrats  and  three  Republicans,  and  all 
Union  men, — Judge  Field  was  nominated  bv  President 


18 

Lincoln,  and  his  nomination  was  unanimously  confirmed  by 
the  Senate.  He  resigned  the  State  judgeship,  and  took  the 
oath  of  office  as  judge  of  the  United  States  Supreme  Court 
on  the  20th  of  May,  1803.  His  commission  was  issued  March 
10th.  but  he  gave  the  following  explanation  of  his  selec- 
tion of  May  20tli,  for  entering  upon  the  duties  of  the  of- 
fice. It  was  necessary  that  he  should  postpone  his  retire- 
ment from  the  State  Bench  for  a while,  in  order  that  the 
Court  might  decide  the  causes  which  had  already  been 
argued  and  submitted  for  decision,  so  that  the  parties  need 
not  be  put  to  the  delay  and  expense  of  re-arguments.  He 
chose  the  20th  of  May  because  he  believed  the  causes 
argued  would  be  by  that  time  decided,  and  because  it  was 
the  birthday  of  his  father;  he  thought  that  his  father  would 
be  gratified  to  learn  that  on  the  82d  anniversary  of  his 
own  birth,  his  son  had  become  a Justice  of  the  Supreme 
Court  of  the  United  States. 

Having  thus  mentioned  the  most  important  events  of 
Judge  Field’s  life,  I shall  analyze  and  describe  his  work 
(1)  as  a Legislator  in  the  early  days  of  California;  (2)  as 
a Judge  of  the  California  Supreme  Court;  and  (3)  as  a 
Justice  of  the  Supreme  Court  of  the  United  States. 

I. — Judge  Field's  work  us  a Legislator. 

In  order  to  appreciate  the  extent  and  importance  of 
Judge  Field’s  legislative  work  during  his  single  term  of 
office,  and  the  lasting  effect  which  it  has  produced  not  only 
upon  California,  hut  upon  other  and  especially  the  mining 
States,  the  anomalous  condition  of  the  State  at  that  early 
day  must  be  fully  understood.  I shall  make  no  attempt  to 
describe  the  mere  social  features  of  California  during  the 
years  succeeding  the  discovery  of  gold;  they  have  been 
often  portrayed  by  masters  in  the  art  of  word-painting.  I 
shall  refer  to  the  condition  of  the  State  so  far  only  as 
relates  to  the  law,  and  the  special  property  interests  which 
then  existed. 


14 


The  discovery  of  gold,  as  is  well  known,  brought  a rush 
of  emigrants  from  all  parts  of  the  United  States,  from 
European  countries,  from  Australia,  and  even  from  the 
Pacific  Islands  and  China.  In  addition  to  this  heteroge- 
neons  mixture  of  all  nationalities  was  the  element  of 
native  Mexican  or  Californian  population.  Among  these 
early  comers,  some  were  men  of  high  character,  intelli- 
gence, and  culture,  well  fitted  to  be  leaders  in  the  com- 
munity. A larger  number  were  of  less  education  and 
culture,  but  still  were  full  of  energy,  and,  coming  from  the 
United  States,  were  inclined  to  be  law-abiding,  possessing 
at  least  some  of  the  American  feeling  of  respect  for  the  law 
and  love  of  justice.  A third,  and  it  must  be  confessed,  a 
large  class,  consisted  of  the  worst  characters  of  the  older 
communities,  rogues,  knaves,  gamblers,  and  professional 
criminals,  acknowledging  no  law,  and  defying  all  law. 

The  law  itself  of  the  country  was  unsettled.  The  civil 
law,  as  formulated  in  Spanish  codes  and  applied  to 
Spanish  colonies,  modified  in  few  particulars  by  Mexican 
legislation,  prevailed  prior  to  the  cession  of  California  to 
the  United  States.  Large  tracts  of  land  were  held  by 
grantees  under  concessions  from  Spain  or  Mexico;  and  the 
law  in  force  contained  provisions  unlike  any  doctrines  of 
the  common  law,  concerning  the  organization  of  “ pueblos” 
or  towns,  which  were  the  basis  of  proprietary  and  munici- 
pal rights  of  enormous  value;  and  it  prescribed  regulations 
for  mining,  and  for  the  occupation  of  mineral  land  different 
from  the  common-law  rules  applicable  to  the  same  sub- 
jects. 

The  stream  of  immigrants  which  poured  into  the  State 
brought  along  with  them  their  own  customs,  opinions,  and 
preferences.  At  home  they  had  been  familiar  with  a great 
variety  of  laws,  and  they  naturally  preferred  to  follow  those 
legal  rules  to  which  they  had  been  accustomed.  The  East- 
ern States  had  mostly  been  settled  by  a homogeneous  pop- 
ulation, all  familiar  with  the  common  law,  and  they  adopted 
it  without  a question.  The  same  was  true  with  respect  to 


the  States  of  the  Ohio  and  Mississippi  Valleys.  13 at  such 
was  not  the  case  with  California  ; no  such  homogeneity  ex- 
isted among  its  people.  And  it  was  perceived  by  intelli- 
gent and  thoughtful  men,  that  the  common  law  of  England, 
adopted  by  the  first  Legislature  as  a rule  of  decision  in 
the  courts,  when  not  repugnant  to  the  constitution  and  laws 
of  the  State,  did  not  meet  the  exigencies  and  conditions  of 
the  country.  Many  of  its  most  characteristic  and  funda- 
mental principles  and  doctrines  were  unfitted  for  the  new 
commonwealth,  partly  from  the  anomalous  condition  of 
society,  partly  from  the  effect  of  the  pre-existing  system 
of  Spanish-Mexico,  and  partly  from  a great  variety  of  most 
important  proprietary  interests,  which  had  not  existed  in 
countries  where  the  common  law  prevailed,  or  had  ex- 
isted under  conditions  essentially  different  from  those  pre- 
sented by  California. 

The  proprietary  rights  to  which  I refer,  and  which  at  that 
time  surpassed  in  value  all  others  within  the  State,  were 
those  growing  out  of  the  mining  industries,  the  claims  of 
miners  to  occupy  portions  of  the  public  mineral  land,  and 
to  extract  the  mineral,  the  works  constructed  by  them  to 
aid  in  opening  and  developing  the  mines,  and  the  ap- 
propriation of  water  in  the  mining  region  for  that  and 
other  beneficial  purposes.  Xo  legislation,  either  State  or 
national,  had  yet  been  enacted  concerning  these  subjects. 
And  the  intricate  and  restrictive  system  of  the  Spanisli- 
Mexican  codes  was  as  inapplicable  as  the  doctrines  of  the 
common  law.  The  seekers  for  gold,  who  had  been  drawn 
from  all  parts  of  the  earth,  were  thus  left  to  adjust  their 
respective  rights  and  claims  as  best  they  might. 

The  mineral  lands,  as  a whole,  belonged  to  the  United 
States,  as  a part  of  the  public  domain;  but  different  opin- 
ions prevailed  with  respect  to  the  ownership  of  the  min- 
erals themselves  while  still  remaining  in  the  soil.  Some 
ptersons  maintained  that  they  belonged  to  the  United 
States,  others  that  they  were  owned  by  the  State,  but  the 


n; 


conviction  was  universal  that  neither  the  national  nor  the 
State  government  should  assert  any  right  of  ownership, 
and  that  its  assertion  would  greatly  impair  the  develop- 
ment of  the  mineral  wealth  of  the  country.  The  immi- 
grants had  poured  over  the  mineral  regions,  settled  down 
in  every  direction,  appropriated  parcels  of  the  territory  to 
their  own  use,  and  were  prospecting  and  mining  in  every 
mode  rendered  possible  by  their  own  resources,  under  no 
municipal  law,  and  with  no  restraint  except  the  danger  of 
conflict  with  other  and  more  powerful  parties  who  could 
wield  a greater  physical  force.  As  justly  observed  by  one 
who,  at  the  time,  was  observant  of  the  conduct  of  the 
miners,  “ the  situation  was  a grave  one,  and  it  demanded 
statesmanlike  treatment.  To  do  nothing  was  to  leave 
the  peace  of  the  State  at  the  mercy  of  those  whose  fierce 
thirst  for  gold  might  outrun  their  respect  for  fair  dealing. 
Honest  misunderstandings  as  to  facts  were  oftenest  settled 
by  immediate  appeal  to  brute  force.  The  world  has  prob- 
ably never  seen  a similar  spectacle — that  of  extensive 
gold-fields  suddenly  peopled  by  masses  of  men  from  all 
States  and  countries,  restrained  by  no  law,  and  not  agreed 
as  to  whence  the  laws  ought  to  emanate  by  which  they 
would  consent  to  be  bound.” 

In  this  condition  of  the  country  the  miners  had  taken 
some  most  important  steps,  which  illustrate  in  the  clearest 
manner  the  love  of  order  and  justice,  and  respect  for  law 
which  characterize  American-born  citizens  of  all  classes, 
and  which  prevented  the  destructive  consequences,  that 
otherwise  would  have  resulted  from  the  absence  of  any 
municipal  law.  They  were  scattered  over  the  territory 
in  larger  or  smaller  groups,  located  at  different  places, 
technically  known  as  u camps,”  “ bars,”  or  “ diggings.” 
In  each  mining  district  they  had  held  meetings  and  had 
enacted  rules  and  regulations  by  which  they  agreed  to  be 
governed  in  that  district.  These*rules  were  simple,  but 
related  to  the  most  important  questions  of  property,  to 


17 


priority  in  claims,  and  the  extent  of  ground  which  one 
person  could  appropriate.  The  rules  once  adopted  were 
enforced  with  rigor  upon  all  settlers  in  the  particular 
camp.  This  voluntary,  self-imposed  legislation  originated 
with  the  American  immigrants,  and  they  were  ordinarily 
so  superior  in  numbers  that  they  could  compel  obedience 
by  the  less  law-abiding  foreigners.  The  rules  they  adopted 
governed  the  extent  of  each  individual  claim  at  the  partic- 
ular locality,  and  prescribed  the  acts  necessary  to  constitute 
such  an  appropriation  of  a parcel  of  mineral  land  or  por- 
tion of  a stream  as  should  give  the  claimant  a prior  right 
against  all  others,  the  amount  of  work  which  should  entitle 
him  to  continued  possession  and  enjoyment,  what  should 
constitute  an  abandonment,  and  like  fundamental  condi- 
tions to  the  acquisition  and  use  of  their  respective  claims. 
These  rules  differed  in  their  details  in  the  various  camps, 
but  there  was  still  a general  similarity  among  them  all. 

In  this  condition  the  Legislature  of  1851  was  called  upon 
to  act.  Mr.  Field,  as  the  result  of  accurate  knowledge  and 
careful  study,  determined  upon  a legislative  policy.  Tie 
understood  the  material  upon  which  any  legislation  must 
work;  he  was  familiar  with  the  miners  as  a class,  and  knew 
their  habits  and  peculiarities,  their  common  sense  and  gen- 
eral love  for  fair  play,  coupled  with  strong  will  and  occa- 
sional violence.  He  saw  at  a glance  that  the  Legislature 
could  not  enact  any  complicated  system  of  mining  law  that 
would  not  interfere  with  the  regulations  which  they  them- 
selves had  established,  and  under  which  their  claims  were 
protected.  The  plan  which  he  finally  concluded  to  pro- 
pose, and,  if  possible,  procure  to  be  adopted,  was  simple, 
and  its  very  simplicity  may,  at  first  blush,  tend  to  ob- 
scure its  wisdom  ; but  all  possible  doubts  in  that  respect 
have  long  since  been  settled  by  its  complete  success.  The 
root  idea  of  this  plan  was  that  the  rules  voluntarily  im- 
posed upon  themselves  by  the  miners  should  receive  the 
sanction  of  the  law,  and  as  laws  should  be  enforced  by  the 
courts  in  adjudicating  upon  mining  rights  and  claims. 


18 


He,  therefore,  drew  up  and  ottered  to  the  Legislature  the 
following  provision,  which,  through  his  advocacy,  was 
adopted  and  incorporated  into  a general  statute  regulating 
proceedings  in  civil  cases  in  the  courts  of  the  State : 

“ In  actions  respecting  mining  claims,  proof  shall  he 
admitted  of  the  customs,  usages,  or  regulations  established 
and  in  force  at  the  bar  or  diggings  embracing  said  claims, 
and  such  customs,  usdges,  or  regulations,  when  not  in  con- 
flict with  the  constitution  and  laws  of  this  State,  shall  gov- 
ern the  decision  of  the  action.” 

The  far-sighted  sagacity,  expediency,  and  wisdom  of  this 
provision  have  been  conclusively  established  by  the  ex- 
perience of  thirty  years  throughout  all  the  Pacific  Mining- 
States  and  Territories.  The  same  fundamental  principle  of 
recognizing  and  giving  the  force  of  law  to  the  local  cus- 
toms and  rules  of  the  miners  has  been  continued  without 
change  in  the  subsequent  legislation  of  California,  and  has 
been  incorporated  into  the  statutes  of  the  other  Mining- 
States.  It  has  also  been  accepted  by  Congress;  and  with 
some  modifications  in  detail,  and  especially  with  the  addi- 
tion of  a more  certain  and  uniform  specification  as  to  the 
extent  of  each  mining  claim  and  the  modes  of  location 
and  appropriation,  it  has  been  made  the  basis  of  the  laws 
enacted  for  the  government  of  the  public  mineral  lands.  I 
therefore  venture  the  opinion,  and  think  that  its  correctness 
cannot  be  questioned,  that  no  single  act  of  creative  legis- 
lation, dealing  with  property  rights  and  private  interests, 
has  exceeded  this  one  in  importance  and  in  its  effects  in 
developing  the  industrial  resources  of  the  country.  The 
causes  which  led  to  its  enactment,  its  simple  but  efficient 
nature,  and  its  beneficial  consequences,  cannot  be  better 
described  than  in  the  language  of  Judge  Field  himself,  in 
an  opinion  delivered  many  years  afterwards  in  the  Su- 
preme Court  of  the  United  States,  in  the  case  of  Jennison 
vs.  Kirk,  an  extract  from  which  is  given  on  pages  6,  7, 
and  8 of  the  accompanying  volume. 

This  enactment  gave  the  force  of  law  to  an  equitable  sys- 
tem of  mining  and  water  regulations,  and  has  been  the  di- 


19 


rect  means  of  promoting  and  protecting  an  industry  which 
has  secured  and  added  an  untold  amount  to  the  total  wealth 
and  resources  of  the  country.  I cannot  leave  this  subject 
without  a brief  comment  upon  the  social  events  themselves 
which  I have  been  describing — events  unexampled,  I 
think,  in  the  history  of  any  other  people.  The  whole  con- 
duct of  the  miners,  their  voluntary  adoption,  in  the  ab- 
sence of  all  municipal  law,  of  regulations  so  just,  wise,  and 
equitable  that  neither  the  State  nor  the  national  govern- 
ment has  attempted  to  improve  them,  exhibits  in  the 
most  striking  manner  those  qualities  which  lie  at  the  basis 
of  the  American  character.  So  long  as  these  qualities  last, 
so  long  as  American  citizens,  individually  or  collected 
into  communities,  possess  and  act  upon  these  conservative 
tendencies,  the  liberties,  safety,  and  perpetuity  of  the 
nation  rest  upon  a certain  and  immovable  foundation. 

In  addition  to  the  provision  concerning  mining  claims, 
Mr.  Field  was  also  the  author  of  many  other  measures  of  the 
greatest  importance  to  the  State,  which  was  then  just  com- 
mencing its  wonderful  course  of  development.  As  most  of 
these  enactments  relate  to  the  internal  affairs  of  California, 
and  have  been  confined  in  their  operation  to  that  common- 
wealth, I shall  merely  enumerate  them,  with  such  brief 
description  as  will  serve  to  indicate  their  purpose  and 
character.  Being  a member  of  the  Judiciary  Committee, 
Mr.  Field’s  work  naturally  related,  in  the  main,  to  the  ad- 
ministration of  justice.  Among  the  most  important  of 
these  measures,  planned  and  drawn  up  by  him,  was  a bill 
concerning  the  Judiciary  of  the  State.  This  act  was  gen- 
eral, dealing  with  the  whole  judicial  system,  and  requiring 
great  labor  in  its  preparation.  It  completely  reorganized 
the  judiciary,  and  defined  and  allotted  the  jurisdiction, 
power,  and  duties  of  all  the  grades  of  courts  and  judicial 
officers.  An  act  passed  in  the  subsequent  session  of  1853, 
revising  and  amending  in  its  details  the  original  statute  of 
1851,  was  also  drawn  up  by  Mr.  Field,  although  he  was 
not  then  a member  of  the  Legislature.  The  system  then 


20 


planned  and  established  in  1851,  and  improved  in  1853, 
and  again  in  1862,  to  conform  to  the  constitutional  amend- 
ments of  the  previous  year,  was  substantially  adopted  in 
the  codes  of  1872,  and  continued  in  operation  until  it  was 
displaced  bv  the  revolutionary  changes  made  in  the  new 
constitution  of  1879-80.  In  connection  with  this  legisla- 
tion affecting  the  judiciary,  Mr.  Field  also  drafted  and 
procured  the  passage  of  an  act  concerning  county  sheriffs, 
defining  all  their  official  functions  and  duties;  an  act  con- 
cerning county  recorders,  creating  the  entire  system  of 
registry  which  has  since  remained  substantially  unaltered; 
and  an  act  concerning  attorneys  and  counsellors  at  law,  by 
which  their  duties  were  declared  and  their  rights  were  pro- 
tected against  arbitrary  proceedings  by  hostile  judges. 

He  also  prepared  and  introduced  two  separate  bills  to 
regulate  the  civil  and  criminal  practice.  These  acts  were 
based  upon  the  Code  of  Civil  Procedure,  and  the  Code  of 
Criminal  Procedure  proposed  by  the  New  York  commis- 
sioners, but  they  contained  a great  number  of  changes  and 
additions  made  necessary  by  the  provisions  of  the  Cali- 
fornia constitution,  and  by  the  peculiar  social  condition  and 
habits  of  the  people.  They  were  by  no  means  bare  copies 
taken  from  the  New  York  Codes,  since  Mr,  Field  altered 
and  reconstructed  more  than  three  hundred  sections  and 
added  over  one  hundred  new  sections.  The  two  measures 
were  generally  designated  as  the  Civil  and  the  Criminal 
Practice  Acts.  They  were  subsequently  adopted  by  the 
other  States  and  Territories  west  of  the  Rocky  Mountains. 
They  continued  with  occasional  amendments  in  force  in 
California  until  the  present  system  of  more  elaborate  codes 
was  substituted  for  them  in  1872;  and  even  this  change 
was  more  in  name  than  in  substance,  since  all  their  pro- 
visions substantially  reappear  in  some  one  of  these  codes. 

In  the  Civil  Practice  Act  he  incorporated  the  pra vision 
above  mentioned  respecting  mining  claims.  He  also  in- 
corporated into  it  another  provision,  which  has  become  a 
permanent  feature  of  the  legislative  policy  of  California, 


21 


and  lias  proved  of  inestimable  benefit  to  its  population — 
the  provision  exempting  certain  articles  of  property  of 
judgment  debtors  from  seizure  and  sale  upon  execution. 
Some  exemption  has  long  been  found  in  the  statute- 
books  of  every  State,  but  it  has  ordinarily  been  small  in 
amount  and  value,  restricted  to  householders,  and  extend- 
ing only  to  a few  articles  of  absolute  necessity  for  the  ex- 
istence of  a family — such  as  a little  kitchen  and  bed-room 
furniture,  bedding,  clothing,  and  a few  other  similar  ar- 
ticles. Mr.  Field  justly  thought  that  the  scheme  of  ex- 
emption should,  especially  in  a new  State,  be  planned 
after  another  policy,— a policy  of  generosity  as  well  as  of 
strict  justice,  believing  that  even  the  strictest  justice  and 
the  claims  of  creditors  would  be  better  subserved  thereby. 
The  fundamental  principle  of  the  plan  proposed  by  him 
was,  that  every  person,  in  addition  to  those  articles  neces- 
sary for  individual  preservation,  such  as  clothing,  reason- 
able household  furniture  and  effects,  and  the  like,  should 
be  secured  in  the  possession  and  use  of  those  things  by 
which,  as  necessary  means  and  instruments,  he  pursues  his 
profession,  trade,  business,  or  calling,  whatever  it  may  be, 
and  acquires  the  ability  of  paying  the  demands  of  his  cred- 
itors. This  law,  therefore,  exempts,  not  only  household  fur- 
niture and  the  like,  but  the  implements,  wagons,  and  teams 
of  a farmer,  the  tools  of  a mechanic,  the  instruments  of  a 
surveyor,  surgeon,  and  dentist,  the  professional  library  of  a 
lawyer  and  a physician,  the  articles  used  by  the  miner,  the 
laborer,  etc.  In  this  connection  it  should  also  be  stated, 
that,  though  not  its  author,  Mr.  Field  was  a most  strenuous 
supporter  of  the  Homestead  Bill,  which  finally  passed  after 
a severe  struggle.  At  that  time  there  was  no  exemption 
whatever  of  personal  property  in  California,  and  none 
equally  extensive  to  be  found  in  the  previous  legislation 
of  any  State  of  the  Union.  It  is  understood  by  those  who 
are  familiar  with  Judge  Field,  that  he  looks  back  with 
greater  satisfaction  upon  the  exemption  system  which  he 
thus  created  than  upon  any  other  of  his  legislative,  work. 


99 


It  lifted  a heavy  load  from  debtors,  enabled  them  to  pur- 
sue their  callings  with  freedom,  and  instead  of  defeating 
the  ends  of  justice  by  preventing  the  collection  of  debts, 
it  has  actually  operated  in  favor  of  creditors,  by  securing 
the  means  whereby  debts  can  be  paid. 

Mr.  Field  also  drew  a bill  creating,  the  Counties  of  Ne- 
vada and  Klamath.  As  there  was  much  complaint  at  the 
boundary  lines  of  several  counties  in  the  State,  various 
bills  for  their  correction  had  been  presented.  These  being 
referred  to  him,  he  reported  a general  bill  revising  and 
amending  the  bill  of  the  previous  year,  dividing  the  entire 
State  into  counties,  and  establishing  the  seats  of  justice  in 
them,  in  which  the  provisions  for  the  new  counties  were 
incorporated;  and  the  bill  passed.  He  also  drew  the  char- 
ters of  Marysville,  Nevada,  and  Monterey;  and  the  bill 
regulating  divorces  and  defining  the  causes  for  which 
marriages  may  be  annulled  and  absolute  divorces  granted. 

The  foregoing  summary  shows  an  enormous  and,  I ven- 
ture to  say,  an  altogether  unprecedented  amount  of  legis- 
lative work,  conceived,  prepared,  perfected,  and  accom- 
plished by  one  man  in  a single  session  of  only  a few 
months  in  duration.  The  influence  of  this  legislation 
upon  the  people  and  the  material  prosperity  of  California 
has  been  simply  immeasurable;  but  it  has  not  been  con- 
fined to  the  limits  of  a single  State;  it  has  extended  over 
the  entire  Pacific  Slope,  and  especially  through  all  the 
mining  regions. 

II.— His  icork  as  a Member  of  the  California  Supreme  Court. 

The  direct  effects  of  Judge  Field’s  work  on  the  State 
Bench,  various  and  important  as  it  was,  have,  of  course, 
been  confined  to  the  State  of  California;  and  it  is  little  to 
say  that  he  has  contributed  more  than  any  other  of  the 
judges  to  settle  the  jurisprudence  of  that  State  upon  a 
broad  and  scientific  basis  of  justice  and  equity. 

As  a student  of  the  California  law,  I venture  the  opinion 
that  wherever  the  present  codes  have  departed  from  the 


rules  laid  down  by  him  in  bis  decisions,  or  in  statutes  of 
which  he  was  the  author,  it  will  be  found  that  the  change 
lias  been  for  the  worse — that  it  has  produced  inconvenience 
and  sometimes  injustice. 

The  indirect  effects  of  his  work  have  extended  through- 
out the  whole  country,  in  two  distinct  forms:  First.  Many 
particular  conclusions  arrived  at  by  the  Court  through  his 
influence,  and  embodied  in  positive  rules  for  the  State  of 
California,  and,  in  some  instances,  incorporated  into  its 
statutory  legislation,  have  been  borrowed  by  the  Courts 
and  Legislatures  of  other  commonwealths ; and  thus, 
while  directly  constructing  the  law  for  one  State,  he 
has  actually  performed  the  same  labor  for  other  States  of 
the  Union.  Secondly.  The  general  doctrines  which  he  as 
a judge,  or  the  Court  under  his  lead,  has  discussed,  ex- 
pounded, and  declared  in  judicial  opinions,  have  exerted 
a powerful  influence  in  aiding  the  decisions  of  other 
tribunals  and  in  shaping  the  development  of  legal  and 
equitable  principles  in  other  parts  of  the  United  States. 

In  the  examination  which  I shall  now  make  of  his 
work  in  the  State  Supreme  Court,  I shall  not  attempt 
to  describe  in  detail  any  causes  in  the  decision  of  which 
he  took  a part,  nor  to  quote  from  his  legal  opinions, 
nor  to  narrate  the  legal  controversies  which  he  aided  in 
adjusting,  nor  even  to  discuss  the  legal  principles  and  doc- 
trines which  he  determined.  The  most  important  of  these 
causes,  opinions,  controversies,  and  doctrines  may  be  found, 
set  forth  at  sufficient  length  and  fully  explained,  in  the 
printed  volume  to  which  this  sketch  is  designed  as  an  in- 
troduction. It  would  be  a useless  expenditure  of  time  and 
labor  for  me  to  recapitulate  in  a condensed  form  the  mat- 
ters of  fact  which  are  there  more  elaborately  displayed. 
For  this  account  in  all  its  completeness  of  detail  I simply 
refer  to  that  section  of  the  volume  which  deals  with 
his  labors  while  a judge  of  the  Supreme  Court  of  Cal- 
ifornia. The  single  purpose  of  this  second  division  will 
be  to  portray  his  character  as  a judge;  to  describe  the  gen- 


24 


eral  nature  of  his  State  judicial  work  as  a whole,  and  to 
enumerate  the  most  important  legal  principles  and 
branches  of  the  State  jurisprudence  which  were  deter- 
mined and  established  by  him,  and  by  the  Court  through 
his  influence. 

In  order  to  form  any  adequate  conception  of  his  judi- 
cial character,  the  nature  and  extent  of  Ids  judicial  work, 
and  the  vast  results  which  it  accomplished,  it  is  neces- 
sary to  understand  and  to  appreciate  clearly  the  remark- 
able and  wholly  anomalous  condition  of  the  law  at  the 
time  when  he  took  his  seat  in  the  court.  I have  already 
spoken  of  this  condition  in  general  terms.  California  was 
utterly  unlike  any  of  the  other  States  at  their  early  settle- 
ment. From  the  heterogeneous  mass  of  immigrants,  every 
variety  of  legal  notions,  habits,  customs,  and  national  sys- 
tems was  represented  among  the  population.  The  com- 
mon law  was  not  accepted  as  a whole,  and  how  far  its 
principles  should  prevail  as  the  foundation  of  the  State 
jurisprudence  was  not  determined.  The  civil  law, modified 
and  adulterated  by  passing  through  the  Spanish-Mexiean 
Codes,  was  acknowledged  as  furnishing  the  rules  control- 
ling many  of  the  older  land  titles. 

In  the  absence  of  positive  law,  the  various  settlements 
and  collections  of  miners  had  adopted  local  regulations 
concerning  mining  and  water  privileges,  which  were 
treated  as  having  the  force  and  effect  of  law.  The  great- 
est amount,  however,  of  embarrassment  and  difficulty 
presented  arose  from  the  vast  number  of  peculiar  inter- 
ests, industries,  and  proprietary  rights  and  claims,  wholly 
unlike  anything  to  be  found  elsewhere  in  this  country, 
and  for  which  the  principles  of  the  common  law  and  of 
equity,  and  the  statutes  of  England  and  of  the  other  States, 
furnished  few,  if  any,  analogies.  Among  these  were  the 
mines  and  all  mining  operations,  water  claims,  ditches, 
irrigating  canals,  the  titles  to  minerals  in  the  soil,  and 
the  Mexican  titles  to  land  grants.  In  fact,  the  California 
judge  wTas  obliged  to  perform  his  work  with  little  help 


from  his  previous  knowledge  of  the  law  in  the  settlement 
of  these  and  similar  questions — questions  entirely  differ- 
ent from  those  which  had  been  presented  to  other  courts, 
American  or  English.  He  was  required  to  frame  a State 
jurisprudence  de  noro — to  create  a system  out  of  what  was 
at  the  time  a mere  chaos.  Three  distinct  matters  fur- 
nished the  material  for  the  most  important  as  well  as  vio- 
lent controversies,  involving  legal  questions  of  the  utmost 
difficulty  and  magnitude,  affecting  pecuniary  interests  to 
an  incalculable  amount,  and  provoking  most  hitter  ani- 
mosities among  the  opposing  parties — which  animosities 
were  often  directed  against  the  judges  when  the  unjust 
and  illegal  claims  of  individuals  or  communities  were  de- 
feated. These  matters  were  : 1st.  The  immense  extent 
and  indefinite  boundaries  of  the  Mexican  land  grants. 
2d.  The  occupation  by  settlers  of  the  public  lands  belong- 
ing to  the  United  States,  before  the  government  had  taken 
any  steps  to  provide  regulations  for  their  use  and  sale. 
3d.  The  mineral  resources,  the  mining  and  water  rights, 
and  the  claim  of  California  to  own  the  gold  and  silver 
found  in  any  lands  situated  within  the  State. 

Added  to  this  unprecedented  condition  of  the  law  was 
the  equally  unprecedented  condition  of  all  business  rela- 
tions subsisting  between  individuals,  which  cannot  be  bet- 
ter portrayed  than  by  quoting  the  language  of  an  associate 
with  Judge  Field  upon  the  Supreme  Court  Bench  of  the 
State : 

“When,  in  addition,  it  is  considered  that  an  unex- 
ampled number  of  contracts,  and  an  amount  of  business 
without  parallel,  had  been  made  and  done  in  hot  haste, 
with  the  utmost  carelessness;  that  legislation  was  accomp- 
lished in  the  same  way,  and  presented  the  crudest  and 
most  incongruous  materials  for  judicial  construction;  and 
that  the  whole  scheme  and  organization  of  the  government, 
and  the  relation  of  the  departments  to  each  other,  had  to 
be  adjusted  by  judicial  interpretation, — it  may  well  be  con- 
ceived what  task  even  the  ablest  jurist  would  take  upon 
himself  when  he  assumed  this  office.” 


c 


26 


On  the  whole,  the  California  judges  were  confronted  by 
a task  enormous  in  its  difficulty  and  importance;  wholly 
unprecedented  in  the  legal  and  judicial  history  of  the 
country;  with  little  aid  from  the  doctrines  of  jurispru- 
dence prevailing  in  other  States;  and  requiring  to  be  grap- 
pled with,  adjusted,  and  settled  without  delay,  upon  a just 
and  solid  basis.  Their  difficulties  were  still  further  en- 
hanced hy  the  character  and  dispositions  of  a large  por- 
tion of  the  population.  As  was  inevitable,  the  absence  of 
legal  and  social  restraints  had  induced  great  numbers  of 
persons  to  engage  in  the  most  extensive  schemes  of  fraud- 
ulent acquisition,  of  grasping  and  accumulating  property 
through  an  open  disregard  of  others’  rights,  of  asserting 
the  most  unscrupulous  and  unfounded  claims,  of  over- 
riding law,  order,  equity,  and  justice  in  every  possible 
manner,  having  the  semblance  of  legal  sanction.  These 
persons  were  often  influential,  and  could  control  the  news- 
papers and  other  organs  of  temporary  popular  opinion. 
When  their  projects  were  thwarted  hy  judicial  deci- 
sions, they  attempted  to  coerce  the  Court  by  public  at- 
tacks of  the  most  hitter  nature  upon  individual  judges, 
attacks  such  as  have  never  been  known,  and  would  never 
for  a moment  be  tolerated  in  the  Eastern  States,  but  which 
the  Court  was  powerless  either  to  prevent  or  to  punish.  The 
most  able  and  upright  members  of  the  Court  were  made 
the  objects  of  virulent  abuse,  the  extent  and  fierceness  of 
which  we  can  hardly  realize  at  the  present  day.  It  is  true, 
that  in  the  course  of  time,  the  truth  gradually  asserted  its 
power,  the  public  mind  appreciated  the  justice  and  integ- 
rity of  the  decisions,  perceived  their  wisdom,  and  acknowl- 
edged their  beneficial  results.  Notwithstanding  this  com- 
plete change  in  the  popular  opinion,  now  at  the  present 
day  the  old  abuse  is  occasionally  revived;  individuals 
whose  schemes  were  defeated  still  pursue  the  court  with 
their  hostile  criticisms.  As  Judge  Field  stood  pre-emi- 
nent among  his  associates  in  the  fearless  discharge  of  duty, 
he  has  been  the  especial  object  of  these  persistent  libels. 


27 


Such  being  the  problem  presented  to  the  California  Su- 
preme Court,  it  should  be  added,  in  forming  a just  esti- 
mate of  Judge  Field’s  work,  that  up  to  the  time  when  he 
was  placed  upon  the  Bench,  much  less  had  been  done  to- 
wards its  permanent  solution  than  the  public  bad  a right 
to  expect.  The  Court,  in  its  early  years,  had  not  always 
commanded  that  entire  confidence  and  respect  of  the 
public  which  are  essential  to  any  tribunal,  if  its  judgments 
are  to  have  moral  weight  in  a community  in  settling  dis- 
puted questions  and  putting  controversies  at  rest.  While 
some  of  its  members  were  men  of  great  ability  and  learn- 
ing, and  would  have  added  to  the  strength  of  any  Court, 
some  of  them  had  not  had  much  experience  at  the  bar, 
and  were  not  possessed  of  the  requisite  acquirements  for 
their  position.  And  it  must  be  confessed  also  that  some 
of  them,  by  their  habits,  had  subjected  themselves  to  un- 
pleasant comment,  and  the  Court  had  thus  suffered  in  public 
estimation.  It  would  subserve  no  useful  purpose  to  enter 
into  any  particulars.  The  distinguished  members  of  the 
Court  of  those  days  now  living  are  the  most  ready  to  ad- 
mit and  deplore  the  truth  of  this  statement.  Their  use- 
fulness was  greatly  impaired  by  the  circumstances  men- 
tioned, of  which  no  one  was  more  forcibly  impressed  than 
, themselves. 

The  most  important  work  of  Judge  Field  was  done 
after  Judges  Baldwin  and  Cope  had  become  his  associates 
on  the  Bench.  They  were  able  and  learned  judges,  and 
fully  bore  their  share  of  the  labors  of  the  Court.  Some 
of  their  opinions  were  admirable  specimens  of  judicial 
reasoning.  Yet  it  is  admitted  by  all  who  were  personally 
acquainted,  as  contemporaries  and  participants,  with  the 
judicial  history  of  the  State,  and  it  is  a truth  patent  to 
all  who  have  obtained  their  only  knowledge  from  the 
reports  of  decisions  during  his  term  of  office,  that  he 
assumed  and  maintained  the  position  of  leadership.  In 
the  fundamental  principles  adopted  by  the  Court,  in  the 


28 


doctrines  which  it  announced,  in  the  whole  system  which 
it  constructed  for  the  adjustment  of  the  great  questions 
hereinbefore  described,  his  controlling  influence  was  ap- 
parent; his  creative  force  impressed  itself  upon  his  asso- 
ciates, guided  their  decisions,  shaped  and  determined  their 
work.  The  pre-eminence  which  he  thus  attained  was 
universally  recognized. 

Many  of  the  decisions  of  the  Court,  however,  though  ex- 
hibiting great  ability  and  learning,  were  of  local  interest 
alone,  dealing  with  matters  confined  to  California,  or,  at 
most,  to  the  Pacific  Coast.  But  in  its  dealings  with  mat- 
ters of  general  interest,  with  the  principles  and  doctrines 
of  common  law  and  of  equity,  with  municipal  and  private 
corporations,  and  with  constitutional  law,  it  rapidly  rose 
in  the  estimation  of  the  profession,  until  it  reached  a po- 
sition of  authority  with  the  Bench  and  Bar  of  the  country 
second  to  no  other  State  tribunal.* 

It  would  be  a comparatively  easy  task  for  one  who  was 
personally  a stranger  to  Judge  Field,  and  was  only  ac- 
quainted with  him  through  his  reported  decisions,  to  form 
a correct  estimate  of  his  judicial  character.  Its  important 
elements,  those  which  distinguish  him  from  the  other 
judges,  and  which  constitute  the  special  grounds  of  his 
success  and  of  his  power,  stand  out  in  clear-cut  lines  upon 
all  the  creations  of  his  official  labors.  He  has  stamped  him- 
self— his  intellectual  and  moral  features — deeply  into  all 
the  work  which  he  has  done.  From  my  own  personal 
acquaintance  with  him,  but  chiefly  from  a careful  study 


* About  four  years  ago  I was  told  by  a gentleman,  who  for  many  years 
had  been  employed  by  a leading  law  publishing  house  of  Boston  as  its 
travelling  agent  through  all  the  States  of  the  Mississippi  and  Ohio  Val- 
leys, that  when  he  first  began  his  work  the  New  York  reports  were  uni- 
versally sought  for  in  every  State,  but  that  of  late  years  the  demand  had 
changed  from  the  New  York  to  the  California  reports.  Everywhere  through 
the  Western  and  Northwestern  States,  he  said,  the  profession  generally 
wished  to  obtain  the  California  reports  as  next  in  authority  after  those 
of  their  own  States.  This  fact  alone  speaks  volumes. 


of  all  his  important  judgments  rendered  both  while  a 
member  of  the  State  Court,  and  after  his  transfer  to  the 
Xational  Judiciary,  I have  arrived  at  the  following  con- 
clusions, which  I unhesitatingly  submit  as  the  most  strik- 
ing and  distinctive  elements  of  his  judicial  character  and 
work.  They  are  undoubtedly  the  very  qualities  which, 
in  our  system  of  jurisprudence,  steadily  developing 
through  the  creative  functions  of  the  courts,  mark  the 
idea]  judge;-— the  qualities  which  have  been  held  by,  and 
which  admit  him  to  be  ranked  with,  the  very  foremost 
class  of  jurists  who  have  sat  upon  the  English  and  Amer- 
ican Bench, — the  class  which  embraces  among  others  the 
names  of  Hardwicke,  Mansfield,  Cottenham,  and  Cock- 
burn,  in  England,  and  Marshall,  Kent,  Story,  Shaw,  and 
Denio,  in  America. 

In  the  first  and  lowest  place,  he  possesses  an  ample  legal 
learning.  It  cannot  be  pretended  that  he  has  that  exact 
knowledge  of  technical  common-law  dogmas  which  dis- 
tinguished such  a judge  as  Lord  Kenyon  or  Baron  Parke, 
or  of  the  intricate  minutiae  of  real  estate  and  conveyancing 
law  which  alone  gave  Lord  Eldon  his  pre-eminence  among 
English  chancellors,- — a sort  of  knowledge  which  with  a 
certain  pedantic  school  lias  passed  for  the  highest  legal 
learning,  but  which  is  worse  than  useless  rubbish  for  the 
American  judge  of  to-day.  Judge  Field’s  learning,  as  a 
distinctive  feature  of  his  intellect,  is  rather  the  capacity  in 
an  extraordinary  degree  to  acquire  the  new  knowledge 
made  necessary  by  the  demands  of  his  position; — the  ca- 
pacity to  investigate  sources  and  systems  of  jurisprudence 
hitherto  unknown,  to  sift  truth  from  error,  to  extract  what- 
ever there  is  of  living  principle,  and  to  appropriate  and  to 
assimilate  the  materials  thus  obtained  with  the  State  or 
national  law  which  he  is  administering.  He  brought  to 
the  Bench  a mind  stored  with  the  doctrines  of  the  com- 
mon law  and  of  equity,  great  intellectual  vigor,  and  a most 
remarkable  capacity  for  rapid  and  sustained  mental  labor. 
The  exigencies  of  his  position  required  him  to  investigate 


30 


the  Spanish-Mexican  Codes,  which  furnished  the  authori- 
tative rules  concerning  “ pueblos,”  with  all  the  municipal 
and  proprietary  rights  flowing  therefrom,  and  concerning 
the  Mexican  Govermental  grants  to  private  owners,  and 
also  to  create  general  principles  and  doctrines  for  which 
the  common  law  and  equity  of  England  and  the  United 
States  attbrded  very  few  if  any  analogies.  It  is  enough 
to  say  that  his  learning,  his  intellectual  power,  and  his 
thorough  and  accurate  study  of  foreign  systems,  were 
always  adequate  to  meet  the  requirements  of  the  occa- 
sion. Still,  I regard  Judge  Field’s  mere  technical  legal 
knowledge — the  facts  which  he  has  acquired  in  a concrete 
form  and  stored  up  in  his  memory— as  a very  subordinate 
element  in  his  judicial  character.  In  this  mere  learning 
he  is  undoubtedly  surpassed  by  many  judges  who  are  not 
only  otherwise  his  inferiors,  but  who  have  never  even  at- 
tained to  any  comparative  distinction  in  their  own  States. 
But  in  the  high  intellectual  power,  which  I have  attempted 
to  describe,  the  power  to  analyze,  to  sift,  to  select,  to  ap- 
propriate truths,  principles,  and  doctrines,  and  to  assimilate 
them  with  the  jurisprudence  already  established,  and  above 
all,  to  create  where  there  was  no  material  from  which  to 
borrow,  he  has  been  equalled  by  few,  and,  in  my  opinion, 
surpassed  by  none  of  the  modern  American  judges. 

The  second  and  much  more  important  element  which 
I shall  notice,  is  his  devotion  to  principle; — that  quality  of 
intellect  which  leads  him,  on  all  judicial  occasions,  to  seek 
for,  apprehend,  and  appreciate  principles,  rather  than  to 
rest  satisfied  with  mere  rules,  although  sustained  by  prece- 
dent, and  to  apply  firmly  these  principles  where  found  in 
all  their  relations  and  consequences  to  place  his  deci- 
sions upon  the  solid  basis  of  fundamental  and  universal 
principles,  rather  than  upon  arbitrary  dogmas.  This  qual- 
ity gives  a most  marked  unity,  consistency,  and  universal- 
ity to  his  decisions,  not  only  to  those  connected  with  some 
single  branch  of  the  law,  but  to  those  belonging  to  any 
and  all  departments.  His  adjudications  generally  will 


31 


thus  be  found  related  to  each  other,  harmonious,  corre- 
sponding parts  of  one  completed  system.  This  method  of 
adhering  to  principle  as  the  sure  and  constant  guide  in 
ascertaining,  interpreting,  and  applying  the  law,  is  the 
immediate  and  efficient  cause  of  that  most  remarkable 
consistency  which  runs  through  all  his  judicial  utterances. 
I shall  have  occasion  to  speak  more  in  detail  of  this  special 
feature  of  consistency,  when  describing  his  judgments 
upon  questions  of  constitutional  law  ; and  although  it 
appears,  perhaps  in  the  most  striking  manner,  in  that 
class  of  cases,  it  is  still  a distinguishing  mark  of  all  his 
work.  The  power  of  discovering,  apprehending,  and  ap- 
plying principles,  is  the  highest  intellectual  faculty  of  the 
ideal  judge  ; it  takes  the  place  of,  and  is  universally  supe- 
rior to,  any  amount  of  mere  learning  ; it  is  the  very 
essence  of  the  best  learning  which  can  be  employed  in 
the  judicial  station.  In  fact  great  learning  alone,  with  a 
total  absence  of  the  power  to  comprehend,  combine,  and 
enforce  the  general  truths  of  jurisprudence,  would  un- 
doubtedly be  more  dangerous  on  the  Bench,  more  liable 
to  produce  injustice,  than  comparative  ignorance.  This 
intellectual  quality  of  appreciating  and  applying  princi- 
ples, of  discovering  their  mutual  relations,  of  following 
them  to  their  legitimate  consequences,  and  of  applying 
them  in  the  deduction  of  particular  rules,  which  Judge 
Field  possesses  in  such  a high  degree,  has  rendered  his 
opinions  exceedingly  useful  to  text-writers,  who  have  fre- 
quently spoken  of  them  in  the  highest  terms  of  praise. 
As  has  already  been  said,  many  of  his  judgments,  pro- 
nounced while  in  the  State  Court,  relate  to  matters  of 
purely  local  interest,  such  as  the  peculiar  land  titles  of 
California,  the  Mexican  pueblos,  the  ownership  of  gold 
and  silver  in  situ,  mining  and  water  rights,  etc.;  and  this 
class  of  cases  undoubtedly  required  for  their  decision  the 
greatest  amount  of  original  investigation,  tracing  of  ob- 
scure analogies,  and  creative  power, — an  expenditure  of 
intellectual  force  which  can  hardly  be  appreciated  by  the 


profession  in  other  parts  of  the  country  who  are  unfamiliar 
with  the  intricate  questions  involved.  On  the  other  hand, 
many  of  his  opinions  deal  with  subjects  of  universal  in- 
terest, as  for  example,  the  powers  and  liabilities  of  munic- 
ipal and  of  private  corporations,  the  nature  of  mortgages^ 
the  validity  of  Sunday  law's,  etc.  These  judgments  have 
uniformly  been  regarded  by  the  profession  and  courts  of 
other  States,  and  by  text  writers,  as  having  the  highest 
authority.  They  have  been  quoted  with  the  strongest  lan- 
guage of  approval  by  such  authors  as  Washburn  and 
Dillon  ; and  their  clear  and  accurate  statement  of  princi- 
ples renders  them  peculiarly  instructive  to  students  of  the 
law  in  all  parts  of  the  Union. 

The  third  distinctive  element  requiring  special  notice  is 
what  may  appropriately  be  called  his  creative  power.  By 
this  designation  I mean  his  ability  in  developing,  enlarg- 
ing, and  improving  the  law,  by  additions  of  new  material, 
whether  this  material  be  borrowed  from  foreign  sources  or 
created  by  means  of  the  legislative  function  belonging  to 
all  Superior  Courts.  The  intellectual  attributes  referred 
to  in  this  and  in  the  preceding  head  are  entirely  distinct; 
they  may  co-exist  in  the  same  individual,  or  the  first  may 
be  possessed  in  a high  degree  without  the  other.  The  first 
deals  with  the  jurisprudence  as  it  has  already  been  .estab- 
lished, investigating,  examining,  and  expounding  or  ap- 
plying its  settled  principles  and  doctrines;  the  other  is 
creative  and  legislative,  employed  in  constructing  new 
law,  or  reforming  and  expanding  that  which  already  ex- 
ists. Many  judges  of  great  and  well-deserved  reputation 
have  possessed  the  first  quality  to  a remarkable  extent, 
without  any  of  the  second — -of  which  class,  I think,  Judge 
Story  was  an  example.  Judge  Field’s  peculiar  talent  as  a 
legal  reformer  was  shown  in  his  purely  legislative  work 
done  while  a member  of  the  State  Assembly,  and  de- 
scribed in  a previous  division  of  this  essay.  He  exhibited 
the  same  power  and  tendency  upon  the  Bench.  They 
were  shown  in  his  constant  rejection  of  ancient  common- 


law  dogmas,  no  matter  how  tirmly  settled  upon  authority, 
which  had  become  outgrown,  obsolete,  and  unfitted  for  the 
present  condition  of  society,  and  in  the  substitution  of 
more  just,  consistent,  and  practical  doctrines  adapted  to 
the  needs  of  our  own  country  and  people.  I merely  men- 
tion, as  sufficient  examples  of  this  class,  his  decisions  upon 
the  nature  and  effect  of  mortgages,  and  those  concerning 
the  ownership  of  gold  and  silver  while  in  the  soil,  by 
which  he  boldly  swept  away  the  common-law  rules  on  the 
subject,  with  all  the  absurd  reasoning  upon  which  they 
had  been  founded.  The  same  power  and  tendency  were 
shown  in  his  accurate  perception  of  those  principles  and 
rules  contained  in  foreign  systems  of  jurisprudence  which 
should  be  borrowed  and  incorporated  into  the  judicial  leg- 
islation of  the  State,  both  for  the  purpose  of  protecting 
many  peculiar  rights  of  property  and  special  interests,  and 
of  regulating  social  relations,  existing  in  California  but 
unknown  in  nearly  all  the  other  States.  Illustrations  of 
the  first  kind  may  he  found  in  his  series  of  most  important 
decisions  concerning  “pueblos”  and  the  municipal  and 
proprietary  rights  belonging  to  them;  and  concerning 
Mexican  land-grants,  in  which  the  rules  were  borrowed 
from  the  Spanish-Mexican  codes;  and  in  those  concern- 
ing the  occupation  of  public  lands  and  mining  and  water 
rights.  A most  illustrative  example  of  the  other  kind  is 
seen  in  his  decisions  relating  to  the  community  property 
of  husband  and  wife, — an  incident  of  the  marriage  rela- 
tion derived  from  the  Spanish-Mexican  jurisprudence, — 
which  placed  the  rights  of  the  two  spouses  in  that  unique 
■species  of  property  upon  a firm  and  equitable  foundation. 
The  same  power  and  tendency  are  shown  in  his  decisions 
concerning  procedure,  in  which  he  more  ably  and  con- 
sistently, perhaps,  than  any  other  judge,  has  carried  into 
operation  the  true  spirit  and  intent  of  the  reformed  Amer- 
ican procedure. 

The  fourth  element  of  his  judicial  character  is  his  fear- 
lessness. As  the  power  to  apprehend  and  apply  princi- 


34 


pies  is  the  highest  intellectual  quality,  so  is  a true  fearless- 
ness the  highest  moral  attribute  of  the  ideal  judge.  No 
other  American  judge  has  so  often  been  called  upon  to 
face  popular  opposition  in  the  decision  of  controversies 
involving  important  legal  questions,  in  which  large 
masses  of  the  population  were  interested,  and  on  one 
side  of  which  all  their  passions,  prejudices,  and  selfish 
motives  were  fully  aroused,  and  often  were  raging  in 
the  fiercest  manner;  and  no  other  judge  has  more  fre- 
quently and  faithfully  discharged  his  sacred  duty  of  de- 
ciding according  to  his  own  enlightened  convictions  of 
law  and  justice,  in  complete  oblivion  of  all  external 
forces,  and  in  absolute  fearlessness  of  the  consequences. 
He  has  neither  courted  personal  popularity  nor  shrunk 
from  unpopularity  by  means  of  his  decisions.  He  could 
well  apply  to  himself  the  memorable  and  noble  lan- 
guage which  Lord  Mansfield  used  from  the  Bench  when 
made  the  object  of  a violent  clamor  on  account  of  his  de- 
cisions: 

“ I will  do  my  duty  unawed.  What  am  I to  fear  ? The 
lies  of  calumny  carry  no  terror  to  me.  I trust  -that  my 
temper  of  mind,  and  the  color  and  conduct  of  my  life, 
have  given  me  a suit  of  armor  against  these  arrows.  . . . 
I wish  popularity,  but  it  is  that  popularity  which  follows, 
not  that  which  is  run  after;  it  is  that  popularity  which, 
sooner  or  later,  never  fails  to  do  justice  to  the  pursuit  of 
noble  ends  by  noble  means.  I will  not  do  that  which  my 
conscience  tells  me  is  wrong  upon  this  occasion,  to  gain  the 
huzzas  of  thousands,  or  the  daily  praise  of  all  the  papers 
which  come  from  the  press;  I will  not  avoid  doing  what  I 
think  is  right,  though  it  should  draw  on  me  the  whole  ar- 
tillery of  libels, — all  that  falsehood  and  malice  can  invent, 
or  the  credulity  of  a deluded  populace  can  swallow.  I can 
say,  with  a great  magistrate,  upon  an  occasion  and  under 
circumstances  not  unlike,  ‘ Ego  hoc  animo  semper  fui,  ut 
invidiam  virtute  partam,gloriam,  non  invidiam,  putarem.’  ” 

No  friend  of  Judge  Field  can  estimate  his  intellectual 
and  moral  fearlessness  too  highly;  no  enemy  can  deny,  or 
ever  has  denied  that  he  possessed  it.  He  has  repeatedly 


35 


encountered,  and  been  compelled  to  endure,  the  bitter  hos- 
tility of  extreme  partisans  belonging  to  the  most  opposite 
schools  of  opinion ; of  extreme  Republicans  and  extreme 
Democrats;  of  those  who  maintain  the  dogma  of  State  sov- 
ereignty, and  of  those  who  assert  the  absolute  legislative 
power  of  the  national  government;  of  ignorant  and  prej- 
udiced masses,  and  of  scheming  speculators  who  would  dis- 
regard all  law  and  right  in  order  to  accomplish  their  pur- 
poses. All  these  outbursts  of  opposition  have,  however, 
died  away;  the  justice  and  wisdom,  as  well  as  the  law,  of 
his  decisions  are  vindicated.  That  true  popularity  has 
succeeded  among  all  intelligent  persons,  which,  in  the 
words  of  Lord  Mansfield,  “ never  fails  to  do  justice  to  the 
pursuit  of  noble  ends  by  noble  means.”  From  the  very 
commencement  of  his  career  on  the  State  Bench,  and 
through  all  the  following  years,  opportunities  have  fre- 
quently been  presented  to  him,  in  the  regular  discharge  of 
his  official  functions,  by  which,  without  any  plain  surren- 
der of  right,  any  obvious  transgression  of  duty,  by  the 
mere  adoption  of  a different  line  of  argument  leading  to  a 
different  conclusion, — -and  even  sometimes  when  that  line 
of  argument  and  that  conclusion  were,  upon  a surface  view, 
correct,  and  were  approved  by  a majority  of  the  legal  pro- 
fession,— opportunities,  I say,  by  which,  in  this  manner,  he 
might  have  obtained  an  immediate  and  even  an  enthusias- 
tic  popularity;  but  in  which,  by  following  the  voice  of  con- 
science and  duty,  and  the  dictates  of  his  own  matured 
judgment,  he  was  certain  to  encounter  a storm  of  hostile 
criticism,  and  even  malignant  hatred.  On  no  occasion 
was  he  ever  influenced  by  either  of  these  considerations; 
on  no  occasion  did  he  ever  swerve  from  his  duty  and  sur- 
render his  own  conscience  and  enlightened  judgment. 
My  space  will  not  permit  me  to  review  these  events  in 
his  life.  Any  correct  account  of  the  decisions  made 
in  the  State  Supreme  Court  concerning  the  pueblo  of 
San  Francisco  and  the  titles  derived  from  the  muni- 
cipality. concerning  the  occupation  of  public  lands,  con- 


36 


cerning  the  State  ownership  of  gold  and  silver,  and  the 
claims  of  miners  to  enter  upon  all  lands,  private  as  well 
as  public,  in  search  for  the  precious  metals,  concerning 
the  rights  of  Mexican  grantees  and  the  intruders  upon 
their  lands,  and  concerning  the  validity  of  certain  acts 
done  by  the  municipal  government  of  San  Francisco, 
will  exhibit  in  the  clearest  manner  the  quality  of  recti- 
tude and  fearlessness  which  is  such  a distinctive  element 
of  his  character.*  In  many  of  the  decisions  rendered  in 
the  United  States  Supreme  Court,  indirectly  growing  out 
of  the  civil  war,  and  directly  out  of  congressional  legisla- 
tion enacted  in  consequence  of  the  war,  including  those 
dealing  with  the  validity  of  test-oaths,  the  extent  and  limi- 
tations of  martial  law,  the  trial  of  civilians  by  military 
tribunals,  the  suspension  of  the  writ  of  habeas  corpus,  and 
similar  questions  affecting  the  very  foundations  of  our  po- 
litical institutions  and  of  our  civil  liberties, — the  same 
quality  was  exhibited  from  a higher  station  and  in  the 
presence  of  the  whole  nation.  In  addition  to  other  in- 
stances, there  is  one  of  later  occurrence  which  is  still 
more  illustrative.  It  may  be  affirmed,  I think,  without 
any  real  doubt  as  to  its  correctness,  that  during  the  past 
year,  by  his  deliberate  and  fearless  discharge  of  duty, 
by  following  his  own  convictions  as  to  the  law,  and  by 
rendering  a decision  in  the  now  memorable  Chinese  Queue 
Case,  which,  however  righteous  and  in  accordance  with 
the  fundamental  principles  of  constitutional  law,  awoke 
a storm  of  fierce  opposition  and  hatred  among  all  the 
lowest  and  most  ignorant  classes  of  tire  political  party 
with  which  he  is  connected,  Judge  Field  lost — nay,  sacri- 
ficed— his  chances,  otherwise  good,  of  a nomination  by  his 
party  for  the  Presidency.  It  can  be  certainly  shown  that 
scheming  politicians,  anxious  only  for  their  own  personal 
advancement,  working  upon  this  temporary  unpopularity 
among  the  Democratic  masses  of  California,  prevented  him 

*See  “Personal  Reminiscences  of  Early  Days  in  California,”  pages  137 
to  171,  inclusive. 


from  obtaining  the  support  of  his  own  State,  and  thus  ren- 
dered his  nomination  by  the  National  Convention  impossi- 
ble. As  a moderate  Republican,  knowing  the  opinions  of 
that  large  division  of  the  party  commonly  called  “ Liberal 
Republicans,”  I do  not  hesitate  to  express  the  strong  con- 
viction that  if  Judge  Field  had  received  the  nomination 
from  the  Democratic  party,  he  would  certainly  have  been 
elected.  The  decision  as  to  the  validity  of  a miserable  city 
ordinance  requiring  the  queues  of  Chinese  prisoners  to  be 
cut  off,  lost  him  the  Democratic  support  of  California.  He 
has,  instead,  the  approval  of  his  own  judgment,  and  of  all 
intelligent,  thoughtful  men  throughout  the  country. 

There  are  other  traits  of  his  intellectual  character 
and  of  his  work,  in  themselves  worthy  of  mention,  such 
as  his  diligence,  his  capacity  for  continued  labor,  his 
rapidity  of  execution,  and  particularly  his  clear  and  accu- 
rate style  of  literary  composition,  which  renders  some  of 
his  more  carefully  prepared  opinions  models  of  judicial 
argumentation ; but  I pass  them  by  without  further  no- 
tice as  not  being  distinctive,  since  they  are  shared  with 
him  in  an  equal  and  sometimes  in  a superior  degree,  by 
others  judges  both  of  the  State  and  the  national  courts. 

I pass  to  a consideration  of  the  work  which  he  did  while 
a member  of  the  Supreme  Court  of  California.  This 
must  be  merely  a brief  reference.  Any  full  account  would 
necessarily  be  a reproduction  of  the  matters  contained  in 
pages  16  to  38  of  the  printed  volume.  I shall,  therefore, 
simply  enumerate  the  leading  decisions,  arranged  in  groups 
according  to  their  subject-matter,  which  best  exhibit  his 
distinctive  qualities  as  a judge,  and  embody  his  most  im- 
portant judicial  work.  They  naturally  fall  into  two  main 
divisions:  (1)  Those  which  deal  with  common  law  and 
equitable  doctrines  of  general  interest  to  the  profession  of 
all  the  States;  and  (2)  Those  which  deal  with  mere  local 
matters,  of  which  the  interest  is  chiefly  confined  to  the 
profession  and  people  of  California  and  the  other  Pacific 
States. 


1.  Matters  of  n general  interest. — Among  the  most  import- 
ant of  these  topics  were  the  following.  The  powers  and 
liabilities  of  Municipal  Corporations.  Certain  transactions 
entered  into  and  acts  done  by  the  governing  body  of  San 
Francisco  gave  rise  to  a bitter  judicial  controversy  extend- 
ing through  several  litigations,  in  which  the  Supreme 
Court  was  called  upon  to  examine,  from  their  very  founda- 
tions, the  doctrines  of  the  American  common  law  con- 
cerning the  powers  and  liabilities  of  Municipal  Corpora- 
tions, in  the  absence  of  express  charter  or  other  statutory 
provisions  defining  and  limiting  the  same.*  The  opinions 
of  Judge  Field  in  these  cases  are  universally  regarded  as  of 
the  highest  authority.  They  are  able,  thorough,  and  ex- 
haustive decisions  of  the  law,  and  reach  conclusions  based 
both  upon  principle  and  precedent  which  have  been  ac- 
cepted by  the  ablest  text-writers,  and  especially  by  Judge 
Dillon,  as  final. 

Mortgages. — The  Supreme  Court,  while  he  was  a mem- 
ber of  it,  freed  the  jurisprudence  of  California  from  the 
last  vestige  of  the  old  common-law  notions  concerning  the 
nature  and  effect  of  the  mortgage,  and  adopted  the  rational 
and  consistent  equitable  theory  as  the  single  system  which 
should  determine  all  private  relations  and  should  prevail 
in  all  tribunals,  both  of  law  and  of  equity.  Ilis  opinions 
explaining,  advocating,  and  enforcing  this  single  equita- 
ble conception  of  the  mortgage  as  purely  a hypothecation, 
as  creating  no  estate  in  the  land,  as  a mere  lien,  and  not  a 
jus  ad  rein  nor  a jus  in  re,  have  not  been  excelled  in  their 
clearness  of  statement  and  cogency  of  argument  by  those 
of  any  other  Court  which  has  maintained  the  same  view, 
and  they  have  undoubtedly  done  much  to  promote  its  ac- 
ceptance in  other  States. t Ho  opinions  upon  the  subject 

* McCraken  vs.  San  Francisco,  16  Cal.,  591;  Grogan  vs.  The  Same,  18 
Cal.,  608 ; Pimental  vs.  The  Same,  21  Cal.,  359;  Argent!  vs.  The  Same, 
16  Cal.,  282;  Zottman  vs.  The  Same,  20  Cal.,  96. — See  the  printed  volume, 
pp.  30-32. 

t McMillan  vs.  Richards,  9 Cal.,  365 ; Nagle  vs.  Macy,  9 Cal.,  426 ; 
Johnson  vs.  Sherman,  15  Cal.,  287  ; Goodenow  vs.  Ewer,  16  Cal.,  461. — See 
printed  vol.,  pp.  32,  33. 


39 


are  more  instructive  for  the  student  in  all  parts  of  the 
country. 

Sunday  Laws. — Under  a constitutional  provision  sub- 
stantially the  same  as  that  in  most  other  States,  a ma- 
jority of  the  Supreme  Court  pronounced  unconstitutional 
and  void  a statute  which  simply  prohibited  the  keeping 
open  of  business  places  (with  certain  specified  exceptions) 
and  the  selling  of  goods,  or  exposing  them  for  sale,  on 
Sunday.  It  will  be  noticed  that  this  statute  was  far  less 
stringent  than  the  type  of  similar  legislation  prevailing  in 
most  of  the  States.  A majority  of  the  Court  saw  fit  to  re- 
pudiate the  authority  of  the  numerous  decided  cases 
unanimously  sustaining  the  validity  of  such  a law.  The 
prevailing  opinion  professed  to  uphold  religious  freedom, 
and  defared  all  statutes  for  the  preservation  of  quiet  and 
good  order  on  Sunday  to  he  sectarian.*  Judge  Field  firmly 
and  most  emphatically  dissented.  His  dissenting  opinion 
is  an  exhaustive  examination  and  triumphant  settlement 
of  all  the  questions  involved,  and  most  effectually  exposes 
the  weak  positions  of  the  majority.  It  vindicates  both  the 
validity  and  the  wisdom  of  such  statutes,  shows  their  uni- 
versal approval,  and  demonstrates  their  secure  foundation, 
not  as  intended  for  the  purpose  of  directly  supporting  re- 
ligion, but  for  the  purpose  of  promoting  and  preserv- 
ing good  order  among  the  entire  community.  This  opin- 
ion was  received  with  the  utmost  satisfaction  by  all  intelli- 
gent and  thoughtful  persons,  not  only  in  California,  but 
throughout  the  country.  At  a later  day  its  reasonings  and 
its  conclusions  were  adopted  by  the  Court  in  a subsequent 
case,  and  the  former  decision  was  overruled.! 

Legal-tender  act  and  taxes. — Soon  after  the  passage  of  the 
Legal-tender  act  by  Congress  the  question  arose,  of  vital 
importance  not  only  to  California,  but  to  every  other  State, 
whether  it  applied  to  the  payment  of  State  taxes.  It  was 
held,  in  an  opinion  delivered  by  Judge  Field,  that  the 


* Ex-parte  Newman,  9 Cal.,  502. — See  printed  vol.,  pp.  34-37. 
f Ex-parte  Andrews,  18  Cal.,  680. 


40 


clause  making  treasury  notes  “ a legal  tender  in  payment 
of  all  debts,  private  and  public,”  is  contined  in  its  opera- 
tions to  obligations  for  the  payment  of  money  founded 
upon  contract,  and  does  not  extend  to  taxes  imposed  un- 
der State  authority;  that  a debt  is  a sum  of  money  due  by 
contract,  express  or  implied,  while  a tax  is  a charge  upon 
persons  or  property  to  raise  money  for  public  purposes, 
and  operates  in  incitum*  The  doctrine  of  this  case  was 
approved  and  followed  by  the  Supreme  Court  of  the 
United  States. f Besides,  the  power  of  taxation  is  one  of 
the  highest  functions  of  government,  given  to  the  indi- 
vidual States  as  well  as  to  the  nation,  and  so  far  as  it  is 
conferred  upon,  and  may  be  exercised  by  the  States,  it  is 
beyond  the  scope  of  congressional  interference.  State 
taxes  are,  therefore,  payable  in  such  kind  of  money  as 
State  laws  shall  prescribe,  entirely  unaffected  by  the  so- 
called  “Legal-tender  act.” 

2.  Mutters  of  a local  interest. — The  long  series  of  decis- 
ions pronounced  by  Judge  Field,  dealing  with  matters  of 
local  interest  to  the  Pacitic  Slope,  discuss  legal  questions 
of  the  greatest  magnitude  and  difficulty,  affecting  property 
of  enormous  value,  and  determine,  in  fact,  the  whole 
course  of  private  industries  in  the  Mining  States.  The  vast 
amount  of  research,  labor,  learning,  and  intellectual  force 
which  these  cases  required,  cannot  be  appreciated  by  those 
whose  only  knowledge  of  them  has  been  obtained  from 
the  volumes  of  Reports.  Nothing  at  all  analogous  to  them 
can  lie  found  in  the  modern  judicial  records  of  the  English 
Bench.  The  judges  of  a new,  half-settled  American  State 
were  called  upon  to  decide  controversies  far  surpassing  in 
the  number  and  difficulty  of  the  legal  questions  presented, 
and  in  the  pecuniary  interests  at  stake,  anything  which 
the  present  generation  has  brought  before  the  House  of 


* Perry  vs.  Washburn,  20  Cal.,  318. 

f Lane  County  vs.  Oregon,  7 Wall.,  71,  per  C.  J.  Chase,  a most  able  ex- 
position of  the  fundamental  theory  of  our  national  government,  and  of 
the  relations  between  the  nation  and  the  States. — See  printed  vol.,  p.  38. 


41 


Lords,  or  the  Privy  Council,  or  other  highest  tribunal  of  the 
British  Empire;  and  many  of  these  decisions- themselves 
would  reflect  credit  upon  the  ablest  of  the  English  judic- 
iary. A detailed  account  of  these  controversies  might,  in 
the  hands  of  a graphic  writer,  be  made  a narrative  of  in- 
tense and  highly  dramatic  interest  to  the  general  as  well 
as  to  the  professional  reader.  Such  a narrative,  however, 
I cannot  attempt.  I can  only  enumerate  the  most  import- 
ant questions  which  were  finally  settled  by  these  succes- 
sive judicial  contests,  and  must  refer  to  the  pages  of  the 
printed  volume  for  all  the  particulars.  It  is  enough  to  say 
that  these  questions,  in  their  universality,  their  variety, 
and  their  far-reaching  consequences,  lay  at  the  very  bot- 
tom of  the  social  organization  in  California;  upon  them 
depended  the  titles  to  a large  portions  of  the  lands;  they 
determined  the  success  or  the  destruction  of  the  great 
mining  and  agricultural  industries  of  the  whole  southern 
coast  west  of  the  Rocky  Mountains.  The  following  is  a bare 
statement  of  the  most  important  which  were  settled  in 
greater  part,  even  if  not  entirely,  through  Judge  Field’s 
influence,  and  the  adoption  of  his  views  by  the  Court. 

1.  The  Mexican  governmental  land-grants,  embracing  as  col- 
lateral or  subordinate  incidents,  the  validity  of  their  titles, 
and  the  system  of  legal  rules  by  which  they  were  to  be 
established  and  governed;  the  extent,  location,  and  bound- 
aries of  the  tracts  included  in  the  grants;  the  rights  of 
the  original  grantees  or  of  their  assigns;  and  the  conflict- 
ing rights  and  claims  of  the  actual  occupants  and  of  adja- 
cent settlers.* 

2.  The  occupation  of  the  United  States  public  lands  by  set- 
tlers, before  any  measures  had  been  adopted  by  the  gov- 
ernment regulating  their  sale  or  use,  that  is,  before  the 
lands  were  surveyed  and  brought  under  the  general  public 

* Ferris  vs.  Coover,  10  Cal.,  589;  Cornwall  vs.  Culver,  16  Cal,4‘29; 
Mahoney  vs.  Van  Winkle,  21  Cal.,  576-580. 

See  the  printed  volume,  pp.  20-24;  and  also  Judge  Field’s  “Personal 
Reminiscences  of  Early  Days  in  California,'’  pp.  138-143. 

D 


42 


land  system.  This  embraced,  as  incidental  and  auxiliary 
questions,  the  mode  of  treating  such  settlers,  whether  they 
were  to  be  regarded  and  dealt  with  as  unlawful  intruders 
and  trespassers  ; the  nature  and  extent  of  the  usufructuary 
interest  which  each  individual  settler  obtained  in  the 
parcel  of  land  appropriated  by  him  from  his  actual  occu- 
pation, and  his  rights  thereto  as  against  all  the  world  ex- 
cept the  United  States;  in  considering  which  questions  the 
Court  boldly  disregarded  the  settled  common-law  rules 
concerning  the  necessity  of  a legal  title  in  order  to  maintain 
ejectment.  It  also  embraced  a consideration  of  the  rights 
of  such  settlers  to  mines  on  the  lands  occupied  by  them, 
and  to  appropriate  water  for  irrigation  and  other  purposes, 
and  a great  number  of  similar  ancillary  questions  growing 
out  of  the  altogether  anomalous  condition  of  the  country, 
and  the  absence  of  legislation  by  Congress.* 

3.  The  ownership  of  the  (/old  and  silver  in  the  soil,  and  the 
claim  of  the  State  to  such  ownership.  In  one  or  two  early 
cases  the  Supreme  Court  had,  without  fully  examining  the 
reasons  originally  given  for  the  doctrine  or  their  applica- 
bility to  our  own  country,  adopted  the  ancient  common- 
law  dogma  that  the  ownership  of  gold  and  silver  con- 
tained in  all  lands  within  the  State  was  vested  in  the  State 
itself  by  virtue  of  its  sovereignty.!  The  miners  soon  took 
advantage  of  this  doctrine.  Claiming  to  act  under  an 
authority  derived  from  a State  statute,  and  even  without 
any  such  legislative  permission,  they  asserted  the  right  to 
carry  on  their  mining,  not  only  in  the  public  lands  of  the 
United  States,  but  also  in  all  land  which  had  been  granted, 
either  by  Mexico,  or  by  the  United  States,  or  by  the  State, 
to  private  owners.  They  even  asserted  this  right  with 
respect  to  private  lands  which  were  actually  occupied 
by  their  owners,  and  were  used  by  them  for  other  pur- 


* Coryell  vs.  Cain,  16  Cal.,  572._ 

f Hicks  vs.  Bell,  3 Cal.,  227  ; Stoakes  vs.  Barrett,  5 Cal.,  37. — See  the 
printed  volume,  pp,  26,  27  ; and  “ Early  Days  in  California,”  pp.  145-149. 


dr- 


poses  than  mining,  for  agriculture,  for  grazing,  or  for 
residence.  This  claim  was  not  an  empty  theory;  it  was 
carried  into  actual  operation.  The  miners  entered  upon 
private  lands  at  will,  used  and  occupied  for  farms,  cattle 
ranches,  vineyards,  or  any  other  similar  purpose,  in  search 
for  gold  and  silver,  heaving  up  the  soil,  and  sometimes 
destroying  improvements  and  doing  great  damage.*  In 
this  condition  of  things  the  Supreme  Court  nobly  per- 
formed its  duty.  With  the  certainty  of  encountering  the 
hostility  of  large  masses  of  prejudiced  and  lawless  men, 
Judge  Field,  as  the  organ  of  the  Court,  swept  away  the 
old  common-law  dogma;  demonstrated  the  absurdity  of 
the  reasoning  upon  which  it  had  originally  been  rested, 
and  showed  its  inapplicability  to  the  institutions  and  social 
condition  of  this  country.  His  opinions,  which  are  most 
able  specimens  of  judicial  reasoning,  established  the  doc- 
trine that  the  gold  and  silver  in  the  soil  belong  to  the 
owner  of  it,  and  that  the  precious  metals  are  entirely 
unconnected  with  whatever  of  sovereignty  inheres  in  the 
State.  As  the  United  States  originally  owned  the  soil, 
so  it  owned  all  the  gold  and  silver  contained  within  the 
same  ; and  this  ownership  passed  to  and  vested  in  the 
grantees  of  the  United  States  and  their  assigns.  Xo  more 
important  decisions  were  made  by  the  Court  while  Judge 
Field  was  a member  of  it,  and  although  they  aroused 
temporary  opposition,  they  have  long  been  acknowledged 
as  wise  and  just  as  well  as  legally  correct. f 

4.  United  States  patents  for  lands,  involving  their  peculiar 
force  and  effect,  the  rights  which  they  confer,  the  legal 
estate  of  the  patentees;  the  equitable  estates  which  may 


* This  was  specially  so  on  the  Mariposa  and  Fernandez  grants.  Hen- 
shaw  vs.  Clark,  14  Cal.,  463;  Biddle-Boggs  vs.  Merced  Mining  Co.,  Id., 
379. 

f Biddle-Boggs  vs.  Merced  Mining  Co.,  14  Cal.,  373-380 ; Fremont  vs. 
Fowler,  and  Moore  vs.  Smaw,  17  Cal.,  200. 

See  the  printed  vol.,  pp.  26-29;  “Early  Days  in  California,"’  pp.  145- 
153. 


44 


exist  either  under  or  in  opposition  to  them,  and  a number 
of  other  incidents.* 

5.  The  Puehlo  of  San  Francisco,  and  the  proprietary 
rights  derived  therefrom.  The  decision  of  the  Supreme 
Court  that  a “ pueblo  ” existed  at  the  site  of  San  Fran- 
cisco, and  that  the  city  had  succeeded  to  its  proprietary 
rights  under  the  Mexican  laws,  settled  a dispute  which 
had  existed  since  the  very  beginning  of  the  American 
settlement.  The  opinion  in  the  first  and  leading- case  was 
written  by  Judge  Baldwin  and  concurred  in  by  Judge 
Field. t The  latter’s  most  important  work  in  connection 
with  this  matter  was  done  by  him  as  United  States  judge, 
presiding  in  the  U.  S.  Circuit  Court.  He  there  rendered 
a final  decree  establishing  the  proprietary  rights  of  San 
Francisco,  which  was  afterwards,  confirmed  by  Congress, 
and  now  constitutes  the  foundation  of  all  the  titles  within 
a large  part  of  the  city  limits.  J 

6.  The  community  •property  of  husband  and  wife,  its  na- 
ture, and  the  rules  regulating  its  management!  disposition, 
and  dissolution,  and  determining  the  rights  in  it  of  the  two 
spouses.  1 1 

7.  Other  subjects. — A number  of  other  subjects  of  great 
importance,  which  were  considered  by  the  State  Court,  are 
mentioned  in  the  printed  volume;  such  as  the  claim  of  the 
State  to  five  hundred  thousand  acres  of  land  granted  by 
the  8th  section  of  the  act  of  Congress  of  September  4th, 
1841,  for  purposes  of  internal  improvement,  and  its  right 
to  dispose  of  the  lands  in  advance  of  the  public  surveys; 

* Moore  vs.  Wilkinson,  13  Cal.,  478  ; Biddl e-Boggs  vs.  Merced  Mining 
Co.,  14  Cal.,  361-366  ; Stark  vs.  Barrett,  15  Cal.,  362;  Xlott  vs.  Smith,  16 
Cal.,  534  ; Teschemacker  vs.  Thompson,  18  Cal.,  20;  Leese  vs.  Clark,  18 
Cal.,  565;  20  Cal.,  411 ; Estrada  vs.  Murphy,  18  Cal.,  268;  Beard  vs.  Fed- 
ery,  3 Wall.,  478. — See  printed  vol.,  p.  30. 

f Hart  vs.  Burnett,  15  Cal.,  530. 

| The  Pueblo  Case,  4 Sawyer,  553.  See  “ Early  Days  in  California,” 
pp.  153-163  ; pp.  241-243. 

||  Myer  vs.  Kinzer,  12  Cal.,  247  ; Smith  vs.  Smith,  12  Cal.,  216-225  ; Pix- 
ley  vs.  Huggins,  15  Cal,,  128  ; Yan  Maren  vs.  Johnson,  Id,,  308;  Scott  vs. 
Ward,  13  Id.,  458. 


45 


contracts  of  the  State  for  the  support  and  labor  of  its  con- 
victs; the  power  of  the  Courts  to  compel  by  mandamus 
officers  of  the  State  to  do  their  duty;  conflicting  rights  of 
miners  to  the  use  of  the  water  of  streams  in  the  moun- 
tains for  the  purpose  of  mining;  the  construction  of  wills; 
the  distinction  between  mortgages  and  deeds  of  trust,  and 
many  other  matters.* 

III. — His  work  as  a Member  of  the  United  States  Supreme 

Court. 

It  is  upon  his  character  as  a constitutional  lawyer,  as  an 
authoritative  interpreter  of  the  National  Constitution,  that 
Judge  Field’s  reputation  as  a judge  of  the  United  States 
Supreme  Court  must  ultimately  and  mainly  rest.  Legal 
questions  of  a countless  number  and  variety,  affecting 
private  rights,  and  involving  every  department  of  juris- 
prudence— common  law  and  equity,  admiralty,  maritime 
and  prize  law,  patent  law  and  copyright,  the  civil  law  as 
embodied  in  Louisiana  and  Mexican  codes,  statutes  of 
Congress  and  of  State  Legislatures,  everything  except 
pure  matters  of  probate — -may  come  before  that  Court  for 
adjudication.  Probably  no  other  single  tribunal  in  the 
world  is  called  upon  to  exercise  a jurisdiction  extending 
over  so  many  different  subjects,  and  demanding  from  its 
judges  such  a variety  of  legal  knowledge.  But  the  high- 
est power  of  the  Court,  that  incident  of  transcendent  im- 
portance which  elevates  it  far  above  any  other  judicial 
tribunal,  is  its  authority  as  a final  arbiter  in  all  controver- 
sies depending  upon  a construction  of  the  United  States 
Constitution,  in  the  exercise  of  which  exalted  function, 
as  the  final  interpreter  of  the  organic  lawq  it  determines 


* Butte  Canal  and  Ditch  Co.  vs.  Vaughan,  11  Cal.,  153  ; Baker  vs.  Baker, 
13  Id.,  87 ; Pierce  vs.  Robinson,  13  Id.,  116  ; Blanding  vs.  Burr,  13  Id., 
343  ; Koch  vs.  Briggs,  14  Id.,  256  ; Noe  vs.  Card,  14  Id.,  577  ; Norris  vs. 
Harris,  15  Id.,  226  ; State  of  California  vs.  McCauley,  15  Id.,  429  ; Holli- 
day vs.  Frisbie,  15  Id.,  630;  McCauley  vs.  Brooks,  16  Id.,  12;  Koppikus 
vs.  State  Capital  Commissioners,  16  Id.,  249  ; Brumagim  vs.  Tillinghast, 
16  Id.,  266 ; Doll  vs.  Meador,  16  Id.,  295  ;'Halleck  vs.  Mixer,  16  Id.,  575. 


46 


the  bounds  beyond  which  neither  the  national  nor  the 
State  governments  may  rightfully  pass.  It  is  the  unique 
feature  of  our  civil  polity,  the  element  which  distinguishes 
our  political  institutions  from  all  others,  the  crowning  con- 
ception of  our  system,  the  very  keystone  of  the  vast  arch, 
upon  which  depend  the  safety  and  permanence  of  the 
whole  fabric,  that  the  extent  and  limits  of  the  legislative 
and  executive  powers,  under  the  Constitution,  both  of  the 
nation  and  of  the  individual  States,  are  judicially  deter- 
mined by  a body  completely  independent  of  all  other  de- 
partments, conservative  in  its  essential  nature  and  ten- 
dencies, and  inferior  to  no  authority  except  the  deliberate 
organic  will  of  the  people  expressed  through  the  elective 
franchise.  This  special  function  of  the  Supreme  Court 
was  from  the  outset  denied  by  a small  school  of  impracti- 
cable theorists,  and  during  the  whole  period  of  our  history 
it  has  been  the  object  of  bitter  hostility  from  those  by 
whom  the  very  conception  of  one  united  people  is  re- 
jected. It  has,  however,  been  uniformly  exercised  from 
the  beginning  of  Washington’s  administration  down  to 
the  present  day;  it  has  grown  in  the  public  favor,  and  it 
has  finally  been  accepted  by  the  overwhelming  weight  of 
popular  approval  as  one  of  the  fundamental  axioms  of 
our  governmental  system.  With  the  vast  majority  of  in- 
telligent men  in  all  parties,  the  well-considered  decisions 
of  the  Supreme  Court  are  regarded  as  authoritatively  set- 
tling disputed  questions  of  power  and  right,  for  the  gov- 
ernment as  well  as  for  individuals,  and  alike  for  the  gov- 
ernment of  the  nation  and  of  the  separate  States.  As  a 
student  of  political  science,  and  especially  of  our  own 
public  law,  I am  profoundly  convinced  that  this  peculiar 
function  of  the  National  Judiciary,  as  the  final  interpreter 
of  the  organic  law,  is  the  very  corner-stone  upon  which 
rest  all  our  institutions,  and  the  permanence  of  our  pres- 
ent organization  into  nation  and  States,  each  with  its 
own  powers,  and  as  a consequence  the  perpetuation  of  our 
civil  and  political  liberties. 


47 


Xo  more  need  be  said  to  show  that  the  character  of  a 
United  States  judge  as  a constitutional  lawyer,  is  a matter 
of  the  highest  importance.  It  is  chiefly  in  this  character  that 
I shall  examine  the  work  of  Judge  Field.  In  such  exam- 
ination I shall  follow  the  method  already  adopted  in  the 
preceding  subdivision.  There  will  be  no  unnecessary  rep- 
etition of  matter  contained  in  the  accompanying  selection 
from  his  decisions  and  opinions.  As  a prelude  or  intro- 
duction to  that  selection,  I shall  portray  his  general  char- 
acter as  a constitutional  lawyer;  state  the  fundamental 
principles  of  constitutional  interpretation  which  he  adopted 
and  promulgated,  describe  the  most  important  of  his  judi- 
cial work  by  which  those  principles  have  been  carried  into 
operation,  and  mention  some  of  the  leading  cases  in  which 
the  results  of  that  work  have  been  embodied.  For  fuller 
details  and  particulars,  reference  must  be  had  to  the  books 
of  reports  and  to  the  volume  of  selections  annexed. 

Within  the  past  year  or  two,  and  especially  since  certain 
recent  decisions  from  which  he  dissented,  the  charge  has 
been  repeatedly  made  by  some  political  newspapers,  whose 
extreme  partisanship  is  only  equalled  by  their  absolute 
ignorance  of  constitutional  law,  that  Judge  Field  is  an 
advocate  of  the  so-called  “State-sovereignty”  theory, 
and  that  he  denies  the  validity  of,  and  is  endeavoring  to 
judicially  break  down,  the  XIVth  Amendment  of  the 
Constitution.  Xothing  can  be  more  absurdly  false.  The 
“State-sovereignty”  theory,  as  I understand  it,  denies  in  toto 
that  the  Xational  Judiciary  can  authoritatively  pass  upon 
the  validity  of  State  legislation;  and  asserts  in  the  most 
positive  manner  that  the  power  to  determine  finally  the 
validity  of  State  laws  and  of  State  governmental  acts,  be- 
longs exclusively  to  each  State — i.  e .,  to  the  judiciary 
thereof — by  itself;  and  insists  that  the  construction  of  all 
provisions  of  the  United  States  Constitution  imposing  re- 
strictions upon  the  State  governments,  is  a judicial  func- 
tion irrevocably  possessed  by  each  State,  with  which  the 
United  States  or  its  judiciary  cannot  interfere.  In  at  least 


48 


one-half  the  cases  involving  questions  of  constitutional 
law  decided  by  Judge  Field,  he  has  reviewed  State  legis- 
lation, inquired  into  its  validity,  and  pronounced  it  void, 
asserting  in  the  strongest  manner  the  revisory  power  thus 
exercised  by  the  Supreme  Court.  Even  as  a single  judge, 
sitting  in  the  Circuit  Court,  he  has  annulled  the  statutes  of 
a State.  In  the  face  of  these  facts  he  is  foolishly  charged 
with  being  a judicial  supporter  of  the  “ State-sovereignty  ” 
dogma,  as  above  defined,  by  editors  who  are  ignorant  of 
the  very  meaning  of  the  term. 

While  in  the  Supreme  Court  of  California  be  had  occa- 
sion, in  a very  important  and  carefully-considered  opinion, 
to  explain  the  true  meaning  of  the  word  “ sovereignty,” 
as  it  is  applied  to  individual  States  under  our  political  sys- 
tem, and  to  show  that  it  is  only  in  a partial  and  qualified 
sense  that  the  word  can  with  propriety  he  used  to  desig- 
nate any  attribute  belongingto  a State.  In  the  great  case 
of  Fremont  vs.  Fowler,*  he  thus  describes  the  sovereignty 
of  a State: 

“ Sovereignty  is  a term  used  to  express  the  supreme  po- 
litical authority  of  an  independent  State  or  nation.  What- 
ever rights  are  essential  to  the  existence  of  this  authority 
are  rights  of  sovereignty.  Thus  the  right  to  declare  war, 
to  make  treaties  of  peace,  to  levy  taxes,  to  take  private 
property  for  public  uses — -termed  the  right  of  eminent  do- 
main— are  all  rights  of  sovereignty,  for  they  are  rights  es- 
sential to  the  existence  of  supreme  political  authority.  In 
this  country,  this  authority  is  rested  hi  the  people , and  is  exer- 
cised through  the  joint  action  of  their  federal  and  State 
governments.  To  the  federal  government  is  delegated  the 
exercise  of  certain  rights  and  powers  of  sovereignty,  and 
with  respect  to  sovereignty,  rights  and  powers  are  synon- 
ymous terms;  and  the  exercise  of  all  other  rights  of'  sov- 
ereignty, except  as  expressly  prohibited,  is  reserved  to  the 
people  of  the  respective  States,  or  vested  by  them  in  their 
local  governments.  When  we  say,  therefore,  that  a State 
of  the  Union  is  sovereign,  we  only  mean  that  she  possesses 
supreme  political  authority,  except  as  to  those  matters  over 


*17  Cal.,  200. 


49 


which  such  authority  is  delegated  to  the  federal  govern- 
ment, or  prohibited  to  the  States;  in  other  words,  that  she 
possesses  all  the  rights  and  powers  essential  to  the  exist- 
ence of  an  individual  political  organization,  except  as  they 
are  withdrawn  by  the  provisions  of  the  Constitution  of  the 
United  States.  To  the  existence  of  this  political  authority 
of  the  State — this  qualified  .sovereignty , or  any  part  of  it— 
t!  e ownership  of  the  minerals  of  gold  and  silver  found 
within  her  limits  is  in  no  way  essential.” 

This  extract  shows  in  the  clearest  possible  light  that 
Judge  Field  repudiates  the  notion  of  an  absolute  sover- 
eignty, such  as  is  the  essential  attribute  of  a completely 
independent  political  society,  being  vested  in  each  indi- 
vidual State;  which  is  the  very  fundamental  conception  of 
the  “ State-sovereignty  ” theory;  on  the  contrary,  lie  as- 
serts the  true  principle, — the  very  central  thought  of  all 
correct  interpretation ,— that  the  absolute  sovereignty  is 
vested  in  the  people ; that  a part  of  its  sovereign  powers  is 
exercised  by  the  federal  government  and  a part  by  each 
State  government;  and  that  the  sovereignty  thus  exercised 
by  a State  is  partial  and  qualified.  To  this  conception  of 
the  relations  between  the  divided  sovereignty,  wielded  in 
part  by  the  central  government  and  in  part  by  the  States, 
he  has  adhered  during  his  whole  judicial  career. 

Passing  now  to  an  affirmative  view  of  his  work  as  a con- 
stitutional interpreter,  I think  that  in  no  other  department 
of  the  law  has  the  element  of  consistency,  described  in  a 
preceding  paragraph,  been  displayed  in  a more  remark- 
able manner  than  in  this.  He  has  adopted  clear  and  defi- 
nite principles  of  constitutional  law,  applicable  both  to  the 
nation  and  to  the  State,  to  the  powers  conferred  upon  the 
government  of  each,  and  to  the  limitation  imposed  upon 
those  powers,  and  to  this  system,  whether  it  be  correct  or 
not,  he  has  unquestionably  adhered  with  absolute  con- 
sistency through  the  entire  course  of  his  numerous  decis- 
ions. No  external  influence  has  been  able  to  sway  him 
from  those  settled  convictions.  When  the  Court  has  con- 
formed to  and  announced  those  principles,  lie  has  agreed 


with  it,  and  has  often  been  its  mouth-piece  in  making 
the  decision.  Whenever  the  majority  of  the  Court,  as  has 
sometimes  been  the  case,  has  temporarily  departed  from 
those  principles  on  either  side,  whether  in  the  direction  of 
sustaining  State  legislation  or  of  sustaining  legislation 
of  Congress,  he  has  dissented.  It  should  be  especially  re- 
marked, for  the  benefit  of  those  who  charge  him  with 
being  a supporter  of  the  “ State-sovereignty  theory,”  so 
called,  that  some  of  his  ablest,  best  considered,  and  most 
forcible  dissents  have  been  from  decisions  of  the  Court 
which  upheld  State  statutes  transgressing,  in  his  opinion, 
the  restrictions  either  of  the  original  Constitution  or  of  the 
XIVth  Amendment. 

The  fundamental  principles  which  Judge  Field  has  thus 
adopted, — the  system  of  constitutional  interpretation  which 
as  a whole  he  has  consistently  maintained,— are,  in  my 
opinion,  correct.  They  are  substantially  the  same  broad, 
comprehensive,  liberal  doctrines  which  were  promulgated, 
and  enforced  with  a cogency  of  reasoning  absolutely  crush- 
ing, by  the  great  Chief  Justice  Marshall,  and  supported  by 
such  judges  as  Washington,  Story,  Wayne,  and  Catron. 
Whether  he  has  correctly  applied  them  in  every  individ- 
ual case  coming  before  him  as  a member  of  the  Court,  or 
whether  he  may  not  sometimes  have  erred  in  such  appli- 
cation, are  questions  concerning  which  there  may,  per- 
haps, be  a difference  of  opinion  even  among  those  who 
entirely  agree  with  him  in  his  general  system. 

These  principles  which  thus  underlie  all  his  work  in 
interpreting  the  Constitution,  and  to  which  he  has  so  con- 
sistently adhered,  whether  acting  with  the  Court  or  dis- 
senting from  it,  are,  I think,  the  following:  (1)  The  polit- 
ical sovereignty  and  absolute  supremacy  of  the  United 
States  and  of  its  government,  with  respect  to  all  matters 
within  the  scope  of  its  legitimate  functions,  embracing  all 
the  legislative,  executive,  and  judicial  powers  conferred 
upon  it  by  the  Constitution,  and  especially  the  power  con- 
ferred upon  its  judiciary,  of  authoritatively  and  finally  in- 


51 


terpreting  the  organic  law,  and  determining  the  nature 
and  extent  of  all  its  grants  and  limitations  of  power.  (2) 
Corresponding  qualified  political  sovereignty  exercised  by 
the  individual  States,  and  their  exclusive  powers,  free  from 
federal  interference  with  respect  to  all  matters  coming 
within  the  scope  of  their  legitimate  functions,  which  in- 
clude all  powers  not  conferred  upon  the  general  govern- 
ment, or  not  reserved  by  the  people  themselves,  incapable, 
therefore,  of  being  exercised  by  either  government,  or  not 
expressly  prohibited  to  the  States.  (3)  The  recognition, 
preservation,  and  maintenance,  firm  and  inviolate,  of  all 
the  limitations  and  restrictions,  whether  expressed  or 
necessarily  implied,  imposed  upon  the  governments,  both 
of  the  United  States  and  of  the  individual  States,  by  the 
original  Constitution  or  by  the  amendments  thereto.  (4) 
The  upholding  and  enforcement,  as  a matter  of  special 
moment,  of  all  those  particular  restrictions  upon  the  gov- 
ernmental action,  both  of  the  United  States  and  of  the  sev- 
eral States,  contained  in  the  original  Constitution  and  in 
the  amendments,  which  are  intended  directly  to  protect 
the  private  rights  of  life,  liberty,  and  property,  and,  in  fact, 
that  entire  body  of  private  rights  which  constitute  “ civil 
liberty.” 

These  principles  may  be  still  further  generalized,  and 
are  summed  up  in  two  ideas:  First,  the  preservation  from 
every  interference  or  invasion  by  each  other,  of  all  the 
powers  and  functions  allotted  to  the  national  government 
and  the  State  governments;  and  second,  the  perfect  security 
and  protection  of  private  rights  from  all  encroachments, 
either  by  the  United  States  or  by  the  individual  States. 
These  two  ideas  he  has  steadily  kept  in  view  and  has  made 
the  basis  of  his  decisions.  He  has  demonstrated  that  a 
constant  and  firm  maintenance  of  the  powers  justly  be- 
longing to  the  federal  government,  is  not  incompatible 
with  an  equally  firm  upholding  of  the  powers  entrusted 
to  the  States,  with  an  undeviating  adherence  to  the  sacred 
doctrine  of  local  self-government,  and  with  zealous  pro- 


tection  of  private  rights,  because  all,  in  fact,  rest  upon 
the  same  foundation. 

My  purpose,  in  the  remaining  portion  of  this  sketch,  is 
to  show  that  Judge  Field  has  uniformly  and  consistently 
asserted  and  applied  these  fundamental  principles  through 
his  whole  course  of  decisions  upon  the  United  States  Bench. 
If  I shall  refer  with  more  detail  to  decisions  in  which  he 
has  asserted  the  power  and  supremacy  of  the  United  States 
Government,  it  is  because  the  other  side  of  his  system,  and 
the  cases  in  which  he  sustains  the  State  authority  and  the 
civil  rights  of  persons,  are  fully  set  forth  in  the  accompany- 
ing volume. 

Judge  Field’s  opinions  concerning  the  essential  and  his- 
torical nationality  of  the  United  States;  the  nature  of  the 
Union  ; its  relations  with  the  States;  the  indestructible  char- 
acter, both  of  the  Union  and  the  States,  as  an  organization 
which  not  only  exists  under  the  Constitution,  but  existed 
prior  to  it,  may  be  learned  from  the  cases  of  Lane  Co.  vs. 
Oregon  and  Texas  vs.  White,  in  7 Wallace.  In  these  cases 
the  Court  was  called  upon  to  examine  more  profoundly  and 
to  declare  more  correctly,  than  had  ever  before  been  done 
by  Marshall,  Story,  Taney,  and  the  whole  line  of  former 
judges,  the  true  nature  of  the  relations  of  the  United  States 
and  of  the  States  with  each  other,  and  of  the  peculiar  or- 
ganization resulting  from  their  union.  The  Court  for  the 
first  time  found  a solid  basis,  historical  as  well  as  logical,  on 
which  to  rest  the  inherent  existence  and  supremacy  of  the 
United  States.  Placing  the  Union  upon  a sure  foundation, 
it  also  defined  the  status  of  the  States,  and  asserted  their 
necessary  existence  and  peculiar  rights  in  a manner  no  less 
clear  and  certain.  The  Court  by  these  judgments  estab- 
lished the  United  States  and  the  States  upon  exactly  the 
same  footing;  whatever  weakens  the  one  weakens  the  other; 
whoever  denies  the  historic  origin  of  the  one,  denies  the 
same  of  the  other.  As  we  have  in  this  theory  the  greatest 
security  for  the  nation,  we  have  also  the  greatest  security 
for  the  several  States.  The  opinions  in  these  two  cases 


were  delivered  by  Mr.  Justice  Chase,  and  were  concurred 
in  by  Judge  Field  and  others  who  composed  the  majority 
rendering  the  decision.  It  is  undoubtedly  true,  as  a general 
rule,  that  concurring  judges  are  not  necessarily  required 
to  agree  with  all  of  the  views  expressed  in  the  prevailing- 
opinion  of  the  Court.  While  they  must  agree  with  its  con- 
clusions, there  may  be  modes  of  reasoning,  forms  of  argu- 
ment, personal  notions  of  the  one  writing  the  opinion,  to 
which  the  concurring  judges  do  not  wholly  assent.  There 
are,  however,  special  reasons  why  this  ordinary  rule  can- 
not be  applied  to  these  two  cases.  They  were  test  cases, 
most  carefully  considered  by  the  Court,  and  intended  by 
the  majority  to  put  the  questions  involved,  forever  at  rest. 
This  was  especially  true  of  Texas  vs.  White.  Again,  the 
conclusions  reached,  and  concurred  in  by  the  majority,  are 
such  as  necessarily  required  an  assent  to  the  whole  course 
of  reasoning  contained  in  the  opinions.  It  would  be  im- 
possible to  reject  any  substantial  position  taken  by  the 
Chief  Justice,  or  any  particular  argument  in  his  chain  of 
reasoning,  without  at  the  same  time  rejecting  the  conclu- 
sions which  he  finally  reaches,  and  which  form  the  basis 
of  the  judgment.  To  this  I may  add  the  testimony  of 
Chief  Justice  Chase  himself.  In  a letter  written  to  me 
shortly  after  the  decision  of  Texas  vs.  White  was  an- 
nounced, he  says,  concerning  the  opinion  in  that  case  : 

“ That  opinion  was  very  much  discussed,  especially  by 
the  judges  who  concurred  in  it,  and  may,  I think,  be  re- 
garded as  a tolerably  correct  expression  of  the  views  of 
the  Court  as  to  the  nature  of  the  National  Union,  of  its  re- 
lations to  the  States,  and  of  the  principles  of  re-organiza- 
tion  of  States  disorganized  by  rebellion,  and  of  the  restor- 
ation of  national  relations  interrupted  by  civil  war.” 

It  may,  therefore,  be  considered  as  certain  that  these 
two  cases  express  the  deliberate  convictions  and  opinions 
held  by  Judge  Field;  and  in  no  subsequent  case  has  he 
expressed  any  sentiment,  or  adopted  any  course  of  reason- 
ing, or  announced  any  doctrine,  in  opposition  to  these 
most  important  and  profound  judgments. 


The  same  high  view  concerning,  the  supremacy  of  the 
United  States  Government,  within  the  field  of  its  dele- 
gated powers,  and  concerning  the  limitations  placed  upon 
State  action,  is  exhibited  in  his  interpretation  of  the  XIVth 
Amendment — that  crowning  and  consummate  provision  of 
the  organic  law.  So  far  from  the  absurd  charge  that  he 
is  hostile  to  this  amendment  being  true,  it  was  Judge  Field 
himself  who  first,  in  a dissenting  opinion,  gave  to  the 
amendment  that  broad,  liberal,  and  universal  construction 
which  renders  it,  as  was  intended,  the  most  perfect  safe- 
guard against  the  encroachments  of  State  governmental 
action  upon  the  private  civil  rights  of  all  persons.  The 
first  cases  involving  the  amendment  which  came  before 
the  Court  were  the  Slaughter-House  Cases. — (16  Wall., 
36.)  The  majority  of  the  Court,  in  an  opinion  by  Mr.  Jus- 
tire  Miller,*  put  upon  the  amendment  a most  narrow  in- 
terpretation, which  would  utterly  destroy  its  value  as  a 
protection  of  private  civil  rights.  They  adopted  as  their 
fundamental  proposition  the  strange  notion  that  the  amend- 
ment was  confined  in  its  operations  to  negroes.  They  held 
that  the  XHIth,  XIVth,  and  XVth  Amendments  were 
steps  in  the  accomplishment  of  one  final  object — the  abo- 
lition of  slavery  and  the  perfect  freedom  and  protection 
of  the  negro  race.  The}"  declared  that,  although  ex- 
pressed in  general  terms,  the  primary  design  and  main 
purport  of  the  XIVth  Amendment  was  to  confirm  the 
status  of  negroes  as  citizens,  and  to  prevent  the  encroach- 
ments of  State  laws  which  would  discriminate  against 
them.  This  was  all  the  meaning  which  the  majority  could 
find  in  provisions  designed  to  protect  all  persons  against 

This  opinion  is  the  more  strange  and  inconsistent  since  Judge  Miller 
has  always  advocated  views  which  tend  to  break  down  almost  all  limi- 
tations upon  the  general  government,  and  to  make  the  legislative  powers 
of  Congress  almost  universal.  While  maintaining  a general  theory  con- 
cerning the  nationality  of  the  U.  S.,  which  I believe  to  he  on  the  whole 
correct,  he  is  inclined  to  ignore  or  weaken  the  restrictions  which  the 
Constitution  has  everywhere  placed  upon  the  exercise  of  full  national 
powers  by  Congress. 


unjust  action  of  the  local  government.  Mr.  Justice  Mil- 
ler went  so  far,  while  commenting  upon  the  last  and  most 
sweeping  provision — “ nor  shall  any  State  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
laws  ” — as  to  say  of  it:  “We  doubt  very  much  whether 
any  action  of  a State,  not  directed  by  way  of  discrimina- 
tion against  the  negroes  as  a class,  or  on  account  of  their 
race,  will  ever  he  held  to  come  within  the  province  of  this 
provision.”  Four  judges  dissented  from  this  narrow  con- 
struction, in  a most  powerful  opinion  written  by  Judge 
Field.  He  asserted  in  the  strongest  terms  the  universality 
of  the  amendment,  its  application  to  all  classes  of  persons. 
He  denied  that  its  operation  was  confined  to  the  negroes. 
It  afforded  the  same  protection  to  all  persons  against  local 
oppressive  laws;  it  secured  to  all  persons  the  equal  pro- 
tection of  the  laws.  In  a word,  the  XlVtli  Amendment 
was  enacted  to  supply  a great  want,  which  had  existed 
since  the  foundation  of  the  government.  While  the 
States  were  from  the  outset  forbidden  to  pass  ex  post  facto 
laws,  or  bills  of  attainder,  or  laws  impairing  the  obligation 
of  contracts,  they  might  in  many  other  ways  invade  the 
rights  of  citizens,  and  the  national  courts  could  grant  no 
relief. 

This  beneficial  amendment  throws  the  protection  of  the 
national  courts  around  the  lives,  liberty,  and  property  of 
all  persons,  and  enables  the  supreme  tribunal  to  annul  all 
oppressive  laws  which  the  partisanship  of  local  courts 
might  perhaps  sustain.  To  limit  the  meaning  of  the 
amendment,  to  confine  its  effect  to  one  portion  of  the  in- 
habitants, and  that  a comparatively  small  part,  was  to  de- 
feat its  most  important  design,  and  to  destroy  its  highest 
usefulness.  The  construction  then  put  upon  it  by  the  ma- 
jority simply  emasculated  the  amendment.  The  broad, 
liberal,  and  national  interpretation  of  Judge  Field  and 
the  minority,  is  clearly  correct;  and  to  it  he  has  steadily 
adhered  in  every  subsequent  case,  coming  before  the 
Supreme  Court,  or  before  himself  in  the  Circuit  Court, 
down  to  and  including  the  somewhat  famous  “ Chinese 


Queue  Case,”  in  which  he  directly  held  that  certain 
local  legislation  was  annulled  by  the  amendment.  Judge 
Field’s  position  in  this  matter  should  not  be  misunder- 
stood. In  the  receirt  cases  which  have  attracted  so 
much  attention,  involving  the  validity  of  certain  legis- 
lation of  Congress  purporting  to  be  based  upon  the 
XIV  th  Amendment,  he  does  not  deny  the  validity  nor. 
the  efficacy  of  that  amendment;  on  the  contrary,  he  re- 
iterates all  the  views  which  he  had  before  expressed.  He 
dissents  from  the  Court  solely  with  respect  to  the  legisla- 
tion which  Congress  may  properly  enact  for  the  purpose  of 
carrying  it  into  effect.  He  declares  that  no  affirmative  leg- 
islation is  either  necessary  or  appropriate.  Like  the  clauses 
forbidding  States  to  pass  ex  post  facto  laws,  or  bills  of  at- 
tainder, or  laws  impairing  the  obligation  of  contracts,  the 
prohibitions  of  the  amendment  execute  themselves.  They 
are  addressed  to  the  States  in  their  corporate  capacity,  and 
not  to  individuals,  and  they  annul  all  State  legislation 
which  conflicts  with  their  provisions.  He  regards  the 
sacred  principles  of  local  self-government  as  lying  at  the 
very  foundation  of  bur  institutions.  The  theory  of  the  Con- 
stitution is,  that  all  affirmative  control  over  and  legisla- 
tion concerning  private  rights  and  relations,  are  confided 
exclusively  to  the  individual  States,  and  are  not  delegated 
to  Congress.  The  XIVth  Amendment  has  enabled  the 
national  courts  to  exercise  a judicial  scrutiny  over  this 
State  legislation,  to  determine  its  validity,  and  to  pronounce 
it  null  and  void  when  discriminating  or  oppressive  or  vio- 
lative of  private  civil  rights;  but  the  amendment  cannot 
be  regarded  as  revolutionizing  the  entire  theory  of  our 
political  organization,  and  as  transferring  to  Congress  the 
power  of  legislating  with  respect  to  private  and  personal 
rights.  This  is,  in  outline,  the  position  maintained  by  Judge 
Field.  It  is  entirely  consistent  with  his  doctrines  concerning 
the  supremacy  of  the  General  Government;  it  is,  in  fact,  a 
part  of  one  rounded,  complete,  and  consistent  system. 

The  supremacy  of  the  General  Government  within  the 
scope  of  those  powers  delegated  to  it  by  the  Constitution, 


0/ 

is  also  maintained  in  the  most  positive  manner  by  a long 
series  of  decisions,  in  many  of  which  he  delivered  the 
opinion  of  the  Court,  and  in  the  others  concurred,  dealing 
with  foreign  commerce,  inter-state  commerce,  the  objects 
of  State  taxation,  and  other  analogous  subjects  of  con- 
gressional legislation.  In  numerous  decisions  covering 
every  aspect  of  the  question,  and  in  language  as  pointed 
and  emphatic  as  any  that  was  ever  used  by  Marshall  or 
Story,  lie  has  affirmed  the  supreme  and  exclusive  power 
of  Congress  over  all  branches  and  kinds  of  foreign  or  in- 
ter-state commerce  which  are  national  in  their  character, 
or  requiring  a uniform  rule,  the  invalidity  of  State  statutes 
which  either  directly  or  indirectly  interfere  with  the  free- 
dom of  inter-state  traffic,  or  with  the  equality  of  civil 
rights  belonging  to  citizens  of  other  States.  Did  my  time 
and  space  permit,  it  would  be  both  interesting  and  instruc- 
tive to  quote  some  passages  from  the  opinions  of  this  class; 
but  I must  be  content  with  collecting  and  arranging  the 
most  important  cases  in  the  foot-note.*  Here,  also,  it  should 
be  noticed  that  Judge  Field  has  been  uniformly  consistent, 
even  when  the  Court  has  departed  from  its  established 
principles,  as  it  did  in  some  of  the  so-called  Granger  Cases 
involving  the  validity  of  State  statutes  which  interfered 
with  and  prescribed  regulations  affecting  the  inter-state 
transportation  of  goods  and  persons,  and  the  inter-state 
traffic  in  goods. t 

*See  the  following  cases  in  which  he  delivered  the  opinion  of  the 
Court : Welton  vs.  Missouri,  1 Otto,  275  ; Sherlock  vs.  Ailing,  3 Otto,  99  ; 
The  Daniel  Ball,  10  Wall..  357,  365;  State  Tax  on  Foreign  Bondholders, 
15  Wall.,  300;  County  of  Mobile  vs.  Kimball,  12  Otto.  691 ; Tiernan  vs. 
Rinker,  Ibid.,  123  ; In  re  Ah  Fong,  3 Sawyer,  144, 151  ; and  also  the  follow- 
ing, among  numerous  others,  in  which  he  concurred  : Case  of  State  Freight 
Tax,  15  Wall.,  232;  Chy  Lung  vs.  Freeman,  2 Otto,  275;  Railroad  vs. 
Husen,  5 Otto,  465  ; Henderson  vs.  5 lay  or  of  N.  Y.,  2 Otto,  259. 

f Munn  vs.  Illinois,  4 Otto,  113,  135;  Chicago,  &c.,  R.  R.  vs.  Iowa,  4 
Otto,  155, 163;  Peik  vs.  Chicago,  &c.,  R.  R.,  4 Otto,  164,177.  Judge  Field’s 
dissent  in  this  group  of  cases  is  a noble  protest  against  State  legislation 
invading  the  rights  of  private  property,  and  as  a course  of  reasoning  is. 
as  it  seems  to  me,  unanswerable. 

E 


58 


One  of  the  most  distinguishing  features  of  Judge  Field’s 
character  as  an  interpreter  of  the  Constitution,  and  of  his 
work  as  a member  of  the  National  Judiciary,  appears  in 
the  steady,  uniform,  and  energetic  manner  in  which  he 
has  enforced  all  the  safeguards  which  the  Constitution  and 
its  amendments  have  thrown  around  the  personal  rights 
of  life,  liberty,  and  property,  by  inhibiting  all  legislative 
or  executive  action,  either  of  the  federal  or  of  the  State 
governments,  which  would  encroach  upon  those  rights, 
lie  has  clearly  perceived  that  the  primary  object  of  all 
constitutional  government  is  the  protection  of  those  sacred 
rights  and  immunities  which  constitute  “ civil  liberty,” 
and  that  a government  which  can  only  be  maintained  by 
ignoring  or  violating  those  rights  is  not  worth  preserving 
and  maintaining.  On  the  other  hand,  he  has  perceived, 
with  an  equally  clear  vision,  that  our  own  national  organi- 
zation, our  political  institutions,  the  integrity  of  our  Union, 
and  the  autonomy  of  the  States,  could  be  upheld,  pre- 
served, and  maintained  by  means  of  a strict  and  faithful 
adherence  to  the  restrictions  and  limitations  embodied  in 
the  Bill  of  Bights;  that  the  preservation  of  the  Union, 
the  suppression  of  insurrection,  and  the  ultimate  triumph 
of  the  principles  of  freedom  and  equality,  did  not  require 
any  abandonment  of,  or  interference  with,  local  self-gov- 
ernment, or  the  civil  liberties  of  the  private  citizen.  This 
element  of  his  character  and  work  is  fully  displayed  in  the 
accompanying  volume  and  needs  no  further  description. 

At  the  outbreak  of  the  civil  war  a species  of  political 
insanity  seems  to  have  seized  upon  large  numbers  of  other- 
wise thoughtful  and  intelligent  men.  The  power  of  the 
President  to  disregard  all  the  legal  securities  of  life,  lib- 
erty, and  property,  to  enforce  martial  law  against  civilians, 
to  establish  military  courts  in  States  removed  from  the 
scene  of  war,  and  subject  persons  there  to  military  trials 
and  punishments,  was  asserted  in  the  most  positive  man- 
ner ; any  denial  or  even  doubt  of  the  authority  was 
treated  as  disloyalty.  It  is  simply  amazing  to  look  back 


59 


to  that  period  and  to  recall  the  opinions  which  were  then 
publicly  maintained.*  The  whole  subject,  in  fact,  pre- 
sented two  aspects,  namely:  the  effect  of  suspending  the 
writ  of  habeas  corpus,  and  the  power  to  enforce  martial 
law.  It  was  asserted  that  the  authority  given  to  suspend 
the  writ  of  habeas  corpus  during  insurrection  or  invasion 
included  the  authority  to  disregard  all  the  safeguards 
which  the  Bill  of  Rights  has  thrown  around  life,  liberty, 
and  property,  and  drew'  after  it,  as  a necessary  conse- 
quence, the  powrer  to  make  military  arrests  of  citizens, 
and  subject  them  to  military  trials  and  punishments.  Even 
at  the  very  outset  a warning  voice  was  raised  against  these 
monstrous  conclusions.  The  venerable  Horace  Binney, 
the  acknowledged  leader  of  the  American  Bar,  the  asso- 
ciate and  friend  of  all  the  greatest  statesmen  and  judges 
of  our  earlier  period,  who,  as  a scholar  in  the  Philadelphia 
High  School,  w'alked  in  public  procession  at  the  adoption 
of  the  United  States  Constitution,  and  then  first  felt,  as  he 
wrote  to  me,  that  he  belonged  to  a nation,  to  something 
he  could  call  his  country, — Horace  Binney  wrote  and  pub- 
lished three  essays  in  which  he  examined  the  subject  of 
suspending  the  writ  of  habeas  corpus  in  a most  exhaustive 
manner,  and  showred,  by  a course  of  reasoning  which 
amounts  to  absolute  demonstration,  that  suspending  the 
writ  does  not  in  the  least  affect  the  authority  over  arrests; 
that  it  does  not  enable  Congress  to  allow,  nor  the  Ex- 
ecutive to  make,  arrests  without  legal  cause  or  in  an  arbi- 
trary manner;  that  it  does  not  legalize  seizures  otherwise 
arbitrary,  nor  give  any  greater  authority  than  that  of  de- 
taining suspected  persons  in  custody  whom  the  govern- 
ment w'ould  else  be  obliged  to  bring  to  a speedy  trial  or  to 
release  on  bail. 


* A large  volume  was  written  and  published  called  “ The  War  Powers 
under  the  Constitution,”  a hook  maintaining  sentiments  suited,  perhaps, 
to  the  autocratic  despotism  of  Russia  in  its  struggle  with  the  Nihilists, 
but  which  are  simply  the  negation  of  every  fundamental  principle  of 
civil  liberty  and  of  private  rights  contained  iu  our  own  political  institu- 
tions. 


60 

These  conclusions  thus  reached  by  Horace  Binney  were 
adopted  by  the  Supreme  Court  in  the  Milligan  Case  (4 
Wall.,  2,  115),  in  the  decision  of  which  Judge  Field 
concurred.  The  claim  to  exercise  martial  law  against 
civilians  was  still  more  terrible.  A most  elaborate  and 
exhaustive  examination  of  the  power  to  enforce  martial 
law  under  or  by  virtue  of  the  common  law  was  made 
a few  years  ago  by  Lord  Chief  Justice  Cockburn,  one 
of  the  ablest  chiefs  who  ever  sat  on  the  English  Bench, 
and  whose  recent  death  is  a great  loss  to  the  English  ad- 
ministration of  justice.*  After  a review  of  the  prece- 
dents, ancient  and  modern,  set  forth  in  the  wonderfully 
clear  manner  for  which  he  was  so  pre-eminently  dis- 
tinguished, the  Chief  Justice  reached  the  conclusion  that 
under  the  common  law  there  is  no  authority  to  enforce 
the  martial  law  in  any  part  of  the  British  Empire  where 
the  common  law  prevails;  in  other  words,  the  common 
law  knows  no  such  attribute  of  executive  power.  This 
conclusion  the  Supreme  Court  also  adopted  in  the  Milli- 
gan case.  There  can  be  no  martial  law  in  the  United 
States  except  as  an  instrument  and  means  of  carrying 
on  actual  warfare,  of  conducting  actual  hostilities  in  re- 
gions occupied  by  the  opposing  armies.  This  doctrine 
received  the  hearty  approval  of  Judge  Field,  and  has 
been  on  every  occasion  maintained  by  him.  See  es- 
pecially his  dissenting  opinion  in  Beckwith  vs.  Bean,  (8 
Otto,  285-806. ) 

I must  not  pursue  this  analysis  into  any  further  detail. 
I have  shown  that  his  system  of  constitutional  construc- 
tion is  consistent  and  complete;  that  it  recognizes  and 
maintains  alike  the  lawful  supremacy  and  exclusive  au- 
thority of  the  General  Government  within  the  scope  of 
powers  delegated  to  it,  and  the  just  rights  of  individual 


* Charge  of  the  Lord  Chief  Justice  of  England  in  the  case  of  the  Queen 
vs.  Nelson  and  Brand,  London,  1867,  a case  growing  out  of  the  negro 
insurrection,  or  rather  tumult,  in  Jamaica,  and  the  conduct  of  the  Gov- 


ernor. 


61 


States;  that  it  preserves  unimpaired  all  the  restrictions 
and  limitations  imposed  upon  the  governmental  action 
both  of  the  States  and  of  the  nation;  that  it  jealously 
guards  the  private  and  civil  rights  and  immunities  of  per- 
sons; and  that  it  respects  and  keeps  in  force  the  sacred 
principles  of  local  self-government,  and  of  civil  and  con- 
stitutional liberty,  which  underlie  all  our  political  institu- 
tions. From  his  opinions  alone,  a complete  and  consistent 
system  of  constitutional  law  might  be  composed,  in  which 
the  American  citizen  would  find  a perfect  text-book  of 
political  science,  an  exhaustive  treatise  upon  the  institu- 
tions of  his  country. 

In  conclusion,  the  proposition  is,  in  my  opinion,  estab- 
lished by  the  foregoing  sketch,  that  by  his  creative  force 
as  a state  legislator,  as  a state  judge,  and,  above  all,  as  a 
member  of  the  Supreme  National  Tribunal,  Judge  Field 
has,  as  much  as  any  jurist  of  the  present  generation,  im- 
pressed himself  upon  the  jurisprudence  of  his  country. 


■ 


. 


63 


Note. 

The  articles  in  this  volume  are  a compilation  made  by 
political  and  personal  friends  of  .Judge  Field.  The  greater 
part  of  them  were  prepared  in  1880.  Those  added  since 
have  been  furnished  principally  by  members  of  the  Bar  of 
California.  The  whole  are  now  published  at  the  request 
of  gentlemen  of  that  State,  where  it  is  believed  they  will 
be  favorably  received  from  the  number  of  important  pub- 
lic questions  considered  in  them,  and  the  ability  with 
which  the  questions  are  treated. 

No  reference  is  made  to  the  action  of  the  associates  of 
Judge  Field  on  the  Bench  or  in  the  Electoral  Commission 
further  than  is  necessary  to  illustrate  and  explain  his  con- 
duct and  positions.  It  is  only  with  his  career  that  the 
volume  is  concerned,  and  its  limits  would  not  allow  any 
extended  statement  of  their  views  and  acts. 

Chauncey  F.  Black. 

Samuel  B.  Smith. 

New  York,  July,  1881. 


STEPHEN  J.  FIELD 


AS  A 


LEGISLATOR,  STATE  JUDGE,  AND  JUDGE  OF  THE 
SUPREME  COURT  OF  THE  UNITED  STATES. 


JUDGE  FIELD  AS  A LEGISLATOR. 


The  Legislation  secured  by  him  for  the  Protection  of  Miners  in  their 
Mining  Claims. 


From  the  San  Jose  Daily  Herald  ( California ) of  November  18,1879. 


“The  long  judicial  service  of  our  distinguished  fellow- 
citizen,  embracing  nearly  six  years  in  the  Supreme  Court 
of  the  State,  and  more  than  sixteen  in  the  Supreme  Court 
of  the  Ignited  States,  has  been  marked  by  most  able  opin- 
ions on  many  great  leading  questions.  This  fact  has  very 
naturally  connected  his  name  in  the  public  mind  mainly 
with  those  questions,  and  few  are  aware  of  other,  and  even 
more  important  services,  rendered  our  State  by  him,  as  a 
legislator,  in  the  early  days  of  the  State’s  history.  He  was 
a member  of  the  second  legislature  which  was  chosen  in 
the  Fall  of  1850,  and  represented  the  then  county  of  Yuba, 
which  at  that  time  included  also  what  are  now  Sierra  and 
Xevada  counties. 

“ The  first  legislature  had  enacted  a general  system  of 
laws,  such  as  are  indispensable  to  the  government  of  any 
community.  It  had  done  nothing,  however,  toward  the  pro- 
tection or  regulation  of  that  great  interest  which  had  gath- 
ered together  from  every  State  in  the  Union,  and  from 
every  nation  of  the  world,  the  restless  and  sometimes  tur- 
bulent population  of  the  California  of  thirty  years  ago.  The 


4 


gold  seekers  were  left  to  jostle  each  other,  and  to  settle  their 
disputes  as  best  they  might.  The  ownership  of  the  mines 
was  held  by  some  to  he  in  the  United  States,  and  by  others 
to’he  in  the  State,  while  all  were  alike  extremely  jealous 
of  any  assertion  of  power  over  them  by  the  government 
of  either.  It  was  evident  that  the  miners  could  not  long 
he  left  to  fight  among  themselves  over  questions  of  priority 
or  extent  of  claims,  while  it  was  equally  evident  that  legis- 
lation on  the  subject  must  be  in  accord  with  generally  ac- 
cepted opinion  or  it  would  be  a dead  letter.  The  situation 
was  a grave  one,  and  it  demanded  statesmanlike  treatment. 
To  do  nothing  was  to  leave  the  peace  of  the  State  at  the 
mercy  of  those  whose  fierce  thirst  for  gold  might  outrun 
their  respect  for  fair  dealing.  Honest  misunderstandings 
as  to  facts  were  oftenest  settled  by  immediate  appeal  to 
brute  force.  The  world  has  probably  never  seen  a sim- 
ilar spectacle — that  of  extensive  gold-fields  suddenly  peo- 
pled by  masses  of  men  from  all  States  and  countries,  re- 
strained by  no  law,  and  not  agreed  as  to  whence  the  laws 
ought  to  emanate  by  which  they  would  consent  to  be  bound. 
As  in  all  other  emergencies,  the  one  man  was  there  to 
bring  forward  the  saving  measure.  Stephen  J.  Field  solved 
the  difficult  problem.  He  saw  that  the  rude  society  around 
him  would  shatter  to  fragments  any  system  in  which  its 
own  strong  will  and  native  common  sense  were  not  taken 
into  account.  The  miners  had,  in  each  camp,  held  meetings, 
and  enacted  rules  and  regulations  by  which  they  agreed  to 
be  governed  in  that  place.  These  had  reference  to  the  ex- 
tent of  each  claim  in  the  given  locality,  the  acts  necessary  to 
constitute  location  or  appropriation  of  the  same,  and  the 
amount  of  work  which  should  entitle  the  claimant  to  con- 
tinued possession.  The  State  could  not  safely  attempt  to 
substitute  for  these  various  rules  any  of  a more  general 
and  uniform  character.  This  fact  was  the  basis  of  the 
measure  brought  forward  by  Judge  Field  in  the  Legislature 
of  1851,  and  by  him  urged  to  final  success.  He  did  not 
leave  the  miners  to  be  a law  unto  themselves,  but  held 


D 


them  to  the  laws  they  had  made  for  themselves.  His 
plan  was  simple  and  at  the  same  time  thorough  and  sound. 
It  was  that  the  rules  made  by  the  miners  should  be  en- 
forced by  the  State.  What  they  had  declared  to  he  fair  play 
should  be  the  law  of  the  land,  and  should  govern  the  courts 
in  their  decisions  in  mining  disputes.  Here  is  the  lan- 
guage : 

‘•In  actions  respecting  ‘Mining  Claims  5 proof  shall  be 
admitted  of  the  customs,  usages,  or  regulations  established 
and  in  force  at  the  bar,  or  diggings,  embracing  such  claims, 
and  such  customs,  usages,  or  regulations,  when  not  in  con- 
flict with  the  constitution  and  laws  of  this  State,  shall 
govern  the  decision  of  the  action.” 

“ The  principle  contained  in  the  fifty -two  words  above 
quoted  was  adopted  in  other  mining  regions  of  the  coun- 
try, and  finally  by  the  Congress  of  the  United  States.  The 
author  of  it  has  seen  its  wisdom  vindicated  by  more  than 
twenty-eight  years  of  experience,  and  for  it  the  people  of 
the  State  and  of  ISTevada  should  ever  hold  him  in  grateful 
remembrance.  When  they  think  of  him  only  as  a judge 
deciding  upon  the  administration  of  laws  framed  by  others, 
let  them  be  reminded  that  in  a single  sentence  he  laid  the 
foundation  of  our  mining  system  so  firmly  that  it  has  not 
been,  and  cannot  be,  disturbed.” 


At  the  time  the  above  legislation  was  had  actions  for 
mining  claims,  the  mines  being  in  the  lands  of  the 
United  States,  were  usually  brought  upon  an  alleged  forci- 
ble or  unlawful  detainer.  The  rule  adopted  by  the  enact- 
ment in  question,  originally  applicable  only  in  actions  be- 
fore local  magistrates,  was  soon  extended  to  actions  for 
mining  claims  in  all  courts,  and,  as  stated  above,  now  pre- 
vails in  all  the  mining  regions  of  the  country. 

Many  years  afterwards  Mr.  Field,  in  giving  the  opinion 
of  the  Supreme  Court  of  the  United  States  in  an  import- 


6 


ant  case  before  it,  spoke  of  the  usages  and  regulations  of 
miners,  to  which  this  legislation  gave  the  force  of  law,  as 
follows  : 

“The  discovery  of  gold  in  California  was  followed,  as  is  well  known, 
by  an  immense  immigration  into  the  State,  which  increased  its  popula- 
tion within  three  or  four  years  from  a few  thousand  to  several  hundred 
thousand.  The  lands  in  which  the  precious  metals  were  found  belonged 
to  the  United  States,  and  were  unsurveyed,  and  not  open,  by  law,  to 
occupation  and  settlement.  Little  was  known  of  them  further  than  that 
they  were  situated  in  the  Sierra  Nevada  Mountains.  Into  these  moun- 
tains the  emigrants  in  vast  numbers  penetrated,  occupying  the  ravines, 
gulches,  and  canons,  and  probing  the  earth  in  all  directions  for  the 
precious  metals.  Wherever  they  went  they  carried  with  them  that  love 
of  order  and  system  and  of  fair  dealing  which  are  the  prominent  charac- 
teristics of  our  people.  In  every  district  which  they  occupied  they 
framed  certain  rules  for  their  government,  by  which  the  extent  of  ground 
they  could  severally  hold  for  mining  was  designated,  their  possessory 
right  to  such  ground  secured  and  enforced,  and  contests  between  them 
either  avoided  or  determined.  These  rules  bore  a marked  similarity, 
varying  in  the  several  districts  only  according  to  the  extent  and  char- 
acter of  the  mines,  distinct  provisions  being  made  for  different  kinds  of 
mining,  such  as  placer  mining,  quartz  mining,  and  mining  in  drifts  or 
tunnels.  They  all  recognized  discovery  followed  by  appropriation  as  the 
foundation  of  the  possessor’s  title,  and  development  by  working  as  the 
condition  of  its  retention.  And  they  were  so  framed  as  to  secure  to  all 
comers,  within  practicable  limits,  absolute  equality  of  right  and  privi- 
lege in  working  the  mines.  Nothing  but  such  equality  would  have  been 
tolerated  by  the  miners,  who  were  emphatically  the  law-makers,  as  re- 
spects mining,  upon  the  public  lands  in  the  State.  The  first  appropriator 
was  everywhere  held  to  have,  within  certain  well-defined  limits,  a better 
right  than  others  to  the  claims  taken  up  ; and  in  all  controversies,  except 
as  against  the  government,  he  was  regarded  as  the  original  owner,  from 
whom  title  was  to  be  traced.  But  the  mines  could  not  be  worked  with- 
out water.  Without  water  the  gold  would  remain  forever  buried  in  the 
earth  or  rock.  To  carry  water  to  mining  localities,  when  they  were  not 
on  the  banks  of  a stream  or  lake,  became,  therefore,  an  important  and 
necessary  business  in  carrying  on  mining.  Here,  also,  the  first  appro- 
priator of  water  to  be  conveyed  to  such  localities  for  mining  or  other 
beneficial  purposes,  was  recognized  as  having,  to  the  extent  of  actual 
use,  the  better  right.  The  doctrines  of  the  common  law  respecting  the 
rights  of  riparian  owners  were  not  considered  as  applicable,  or  only  in  a 
very  limited  degree,  to  the  condition  of  miners  in  the  mountains.  The 
waters  of  rivers  and  lakes  were  consequently  carried  great  distances  in 
ditches  and  flumes,  constructed  with  vast  labor  and  enormous  expendi- 
tures of  money,  along  the  sides  of  mountains  and  through  canons  and 


7 


ravines  to  supply  communities  engaged  in  mining,  as  well  as  for  agricul- 
turists and  ordinary  consumption.  Numerous  regulations  were  adopted, 
or  assumed  to  exist  from  tlieir  obvious  justness,  for  the  security  of  these 
ditches  and  flumes,  and  the  protection  of  rights  to  water,  not  only  be- 
tween different  appropriators,  but  between  them  and  the  holders  of 
mining  claims.  These  regulations  and  customs  were  appealed  to  in  con- 
troversies in  the  State  courts,  and  received  their  sanction  ; and  properties 
to  the  value  of  many  millions  rested  upon  them.  For  eighteen  years, 
from  1848  to  1866,  the  regulations  and  customs  of  miners,  as  enforced 
and  moulded  by  the  courts,  and  sanctioned  by  the  legislation  of  the 
State,  constituted  the  law  governing  property  in  mines  and  in  water  on 
the  public  mineral  lands.  Until  1866  no  legislation  was  had  looking  to 
a sale  of  the  mineral  lands.  The  policy  of  the  country  had  previously 
been,  as  shown  by  the  legislation  of  Congress,  to  exempt  such  lands  from 
sale.  In  that  year  the  act,  the  ninth  section  of  which  we  have  quoted, 
was  passed.*  In  the  first  section  it  declared  that  the  mineral  lands  of 
the  United  States  were  free  and  open  to  exploration  and  occupation  by 
citizens  of  the  United  States,  and  those  who  had  declared  their  intention 
to  become  citizens,  subject  to  such  regulations  as  might  be  prescribed  by 
law  and  the  local  customs  or  rules  of  miners  in  the  several  mining  dis- 
tricts, so  tar  as  the  same  were  not  in  conflict  with  the  laws  of  the  United 
States.  In  other  sections  it  provided  for  acquiring  the  title  of  the  United 
States  to  claims  in  veins  or  lodes  of  quartz  hearing  gold,  silver,  cinnabar, 
or  copper,  the  possessory  right  to  which  had  been  previously  acquired 
under  the  customs  and  rules  of  miners.  In  no  provision  of  the  act  was 
any  intention  manifested  to  interfere  with  the  possessor}^  rights  pre- 
viously acquired,  or  which  might  be  afterwards  acquired  ; the  intention 
expressed  was  to  secure  them  by  a patent  from  the  government.  The 
Senator  of  Nevada, f the  author  of  the  act,  in  advocating  its  passage  in 
the  Senate,  spoke  in  high  praise  of  the  regulations  and  customs  of  miners, 
and  portrayed  in  glowing  language  the  wonderful  results  that  had  fol- 
lowed the  system  of  free  mining  which  had  prevailed  with  the  tacit 
consent  of  the  government.  The  Legislature  of  California,  he  said,  had 
wisely  declared  that  the  rules  and  regulations  of  miners  should  be  re- 
ceived in  evidence  in  all  controversies  respecting  mining  claims,  and 
when  not  in  conflict  with  the  constitution  or  laws  of  the  State  or  of  the 
United  States,  should  govern  their  determination;  and  a series  of  wise 
judicial  decisions  had  moulded  these  regulations  and  customs  into  ‘ a 
comprehensive  system  of  common  law,  embracing  not  only  mining  law, 
properl}’  speaking,  but  also  regulating  the  use  of  water  for  mining  pur- 
poses.’ The  miner’s  law,  he  added,  was  a part  of  the  miner’s  nature.  He 
had  made  it,  and  he  trusted  it  and  obeyed  it.  He  had  given  the  honest 


* The  act  of  July  26,  1866,  “granting  the  right  of  way  to  ditch  and 
canal  owners  over  the  public  lauds,  and  for  other  purposes.” — (14  U.  S. 
Statutes,  251.) 

f Hon.  Wm.  M.  Stewart. 


8 


toil  of  his  life  to  discover  wealth,  which,  when  found,  was  protected  by 
no  higher  law  than  that  enacted  by  himself  under  the  implied  sanction 
of  a just  and  generous  government.  And  the  act  proposed  continued 
the  system  of  free  mining,  holding  the  mineral  lands  open  to  exploration 
and  occupation  subject  to  legislation  by  Congress  and  to  local  rules.  It 
merely  recognized  the  obligation  of  the  government  to  respect  private 
rights  which  had  grown  up  under  its  tacit  consent  and  approval.  It  pro- 
posed no  new  system,  but  sanctioned,  regulated,  and  confirmed  a system 
already  established,  to  which  the  people  were  attached.” — (Jennison  vs. 
Kirk,  98  U.  S.  Rep.,  457.) 


JUDGE  FIELD  AS  A LEGISLATOR. 


The  Legislation  secured  by  him  for  the  Exemption  from  Forced  Sale 
for  Debts  of  the  Took  and  other  Personal  Property  of  the  Debtor. 


From  the  San  Jose  Daily  Herald  of  November  21, 1879. 


“Last  Wednesday  we  gave  a portion  of  Judge  Field’s 
record  as  a legislator  in  this  State,  showing  that  his  ser- 
vices have  been  of  great  value  and. that  he  is  one  of  the 
most  thorough  statesmen  claimed  by  this  coast.  We  re- 
ferred particularly  to  the  mining  law,  and  we  now  call 
attention  to  another  most  beneficial  law  of  which  Judge 
Field  was  the  author.  We  refer  to  the  law  exempting 
from  sale  for  debt  (other  than  the  purchase  money,  or  to 
satisfy  a mortgage  thereon)  certain  property.  The  law 
reads  as  follows  : 

“ The  following  property  shall  be  exempt  from  execu- 
tion, except  as  herein  otherwise  specially  provided  : 

“ 1.  Chairs,  tables,  desks,  and  books,  to  the  value  of  one 
hundred  dollars,  belonging  to  the  judgment  debtor  ; 

“ 2.  Necessary  household,  table,  and  kitchen  furniture, 
belonging  to  the  judgment  debtor,  including  stove,  stove- 


9 


pipe,  and  stove  furniture,  wearing  apparel,  beds,  bedding, 
and  bedsteads,  and  provisions  actually  provided  for  indi- 
vidual or  family  use  sufficient  for  one  month  ; 

3.  The  farming  utensils,  or  implements  of  husbandry, 
of  the  judgment  debtor  ; also  two  oxen,  or  two  horses,  or 
two  mules,  and  their  harness,  and  one  cart  or  wagon,  and 
food  for  such  oxen,  horses,  or  mules  for  one  month  ; 

4.  The  tools  and  implements  of  a mechanic  necessary 
to  carry  on  his  trade,  the  instruments  and  chests  of  a sur- 
geon, physician,  surveyor,  and  dentist  necessary  to  the  ex- 
ercise of  their  professions,  with  their  professional  library, 
and  the  law  libraries  of  an  attorney  or  counsellor  ; 

“ 5.‘  The  tent  and  furniture,  including  a table,  camp 
stools,  bed  and  bedding,  of  a miner  ; also  his  rocker, 
shovels,  spades,  wheelbarrows,  pumps,  and  other  instru- 
ments used  in  mining,  with  provisions  necessary  for  his 
support  for  one  month  ; 

“ 6.  Two  oxen,  or  two  horses,  or  two  mules,  and  their 
harness,  and  one  cart  or  wagon,  by  the  use  of  which  a 
cartman,  teamster,  or  other  laborer  habitually  earns  his 
living  ; and  food  for  such  oxen,  horses,  or  mules  for  one 
month  ; and  a horse,  harness,  and  vehicle  used  by  a phy- 
sician or  surgeon  in  making  his  professional  visits  ; 

“ 7.  All  arms  and  accoutrements  required  by  law  to  be 
kept  by  any  person.  But  no  article  mentioned  in  this 
section  shall  be  exempt  from  an  execution  issued  on  a 
judgment  recovered  for  its  price,  or  upon  a mortgage 
thereon.”  * 

“ This  was  far  in  advance  of  any  similar  provision  in 
other  States,  and  was  a bold  and  novel  proposition.  Thou- 
sands have  enjoyed  its  benefits  without  being  aware  that 
its  author  was  Stephen  J.  Field.  The  wisdom  of  it  is 
manifest  when  we  consider  that  it  merely  preserves  to  the 
unfortunate  debtor  the  instrumentalities  for  future  effort. 
A rapacious  creditor  might  feel  entitled  to  “ the  uttermost 
farthing  ” in  the  possession  of  the  man  indebted  to  him. 


* These  provisions  are  contained  in  section  219  of  the  act  of  1851, 
regulating  proceedings  in  civil  cases,  which  is  one  of  the  many  original 
sections  in  that  act  drawn  by  Judge  Field.  Until  this  legislation  there 
was  no  exemption  at  all  of  personal  property  in  California ; and  no  exemp- 
tion equally  extensive  is  found  in  the  previous  legislation  of  any  State 
of  the  Union. 


10 


But  this  law  interposes  and  says  to  the  debtor  : “ You  shall 
have  the  right  to  reserve  a hundred  dollars’  worth  of 
property,  your  necessary  household  furniture,  wearing  ap- 
parel, and  a month’s  provisions  ; and  then  besides  this,  if 
you  are  a farmer,  you  shall  he  allowed  to  retain  all  your 
farming  implements,  and  also  a wagon  and  a pair  of  ani- 
mals, with  one  month’s  food  for  them.  This  will  enable 
you  to  go  to  work  and  repair  your  fortunes.  The  law  will 
not  see  you  disabled.”  To  the  mechanic  and  miner  this 
humane  law  says  : “ Be  of  good  cheer.  You  shall  keep 
the  tools  with  which  you  ply  your  calling.  These  shall 
be  regarded  as  a part  of  your  own  physical  system  ; as 
well  might  your  hands  be  cut  off  as  your  tools  taken  from 
them.”  To  the  workingman  using  a cart  and  horse,  as  so 
many  laborers  do,  this  law,  which  has  stood  for  twenty- 
eight  years  on  our  statute  book,  says  : “ You  must  pay 
your  debts,  but  need  not  sell  the  good  horse  and  cart  by 
which  you  are  aided  to  feed  your  children.  Nay,  you  may 
keep  a wagon  and  two  horses,  if  you  are  so  fortunate  as 
to  have  them.  These  make  you  independent,  and  the 
sheriff  shall  not  take  them.”  Others  were  also  protected. 
The  instruments  of  the  surgeon  and  surveyor,  the  library 
of  the  physician  and  the  lawyer,  and  the  horse  and  buggy 
of  the  physician,  were  all  declared  exempt  from  forced 
sale.  This  law  has  never  been  complained  of  or  tampered 
with,  and  remains  a monument  to  the  wisdom,  humanity, 
and  thoughtfulness  of  its  author,  Judge  Field,  who,  in 
framing  it,  made  application,  for  the  benefit  of  the  debtor, 
of  the  truth  uttered  by  that  harshest  of  creditors — Shy- 
lock — when  he  said  : 

You  take  my  life 

When  you  do  take  the  means 
Whereby  I live. 

These  measures — the  mining  law,  and  the  law  exempt- 
ing certain  property  from  forced  sale  under  execution — 
are  but  a small  portion  of  the  valuable  legislative  work  of 
Judge  Field,  but  we  bring  them  to  public  attention  at  this 


11 


time  as  furnishing  high  evidence  of  the  practical  wisdom 
of  one  whose  name  we  read  oftenest  of  late  years  in  con- 
nection with  judicial  decisions,  but  whose  friends  could,  if 
they  chose,  claim  for  him  a place  among  statesmen  as  high 
as  that  he  occupies  among  jurists*  His  conservatism  has 
never  made  him  the  enemy  of  wholesome  changes,  and 
his  progressiveness  has  never  made  him  the  supporter  of 
any  of  the  isms  of  the  times.  He  has  been  as  great  a 
student  of  men  and  of  affairs  as  of  books.” 


JUDGE  FIELD  AS  A LEGISLATOR. 


General  Legislation  secured  by  him . 


From  the  San  Joee  Daily  Herald  of  December  26, 1879, 


“We  have  already  referred  to  legislation  concerning 
mining  customs  and  regulations,  and  exemptions  of  cer- 
tain personal  property  from  forced  sale,  of  which  Judge 
Field  was  the  author.  We  desire  to  make  some  further 
reference  to  his  brief  but  most  honorable,  and  we  might 
truly  say  brilliant  legislative  career. 

“ His  service  w'as  only  for  a single  session— that  of  1851 
— and  yet  whilst  there  he  left  his  mark  permanently  upon 
the  laws  of  the  State.  He  was  appointed  on  the  Judiciary 
Committee  ; and  as  a member  of  that  Committee  he  pre- 
pared and  reported  a bill  concerning  the  Courts  of  Justice 
and  Judicial  Officers  of  the  State,  which  was  passed.  The 
immense  labor,  difficulty,  and  responsibility  attending  the 
preparation  of  this  bill  will  be  seen,  when  it  is  stated  that 


12 


by  it  the  whole  Judiciary  System  of  the  State  was  reorgan- 
ized, and  the  jurisdiction,  powers,  and  duties  of  the  several 
courts,  and  of  all  judicial  officers,  were  designated  and  de- 
fined. And  it  may  he  here  added  that  the  act  of  1853 
with  the  same  title — which  was  the  original  act  carefully 
revised,  and  introduced  into  the  Legislature  by  Mr.  Sam- 
uel 13.  Smith  of  Sutter  County — was  also  prepared  by  him. 

“ He  also  prepared  and  introduced  hills  to  regulate  pro- 
ceedings in  civil  and  criminal  cases.  These  hills  were  taken 
from  the  proposed  codes  of  Hew  York  as  reported  hv 
the  Commissioners  of  that  State  ; but  the  great  labor  in- 
volved nevertheless  in  their  preparation  maybe  estimated 
from  the  fact,  that  in  order  to  adapt  them  to  the  peculiar 
condition  of  the  new  State  and  the  requirements  of  its 
constitution,  as  well  as  to  Ids  own  views  of  what  would 
constitute  the  best  practice,  he  redrafted  over  three  hun- 
dred sections,  and  added  over  one  hundred  new  ones. 
Among  the  new  sections  are  those  to  which  we  have  al- 
ready  referred  relating  to  actions  respecting  mining  claims 
and  the  admission  in  evidence  of  the  customs  and  regula- 
tions of  miners,  and  respecting  exemptions  from  forced 
sale  of  personal  property.  These  hills  became  laws  and 
with  some  amendments — found  necessary  during  a period 
of  nearly  twenty-two  years,  and  particularly  from  the  con- 
stitutional amendments  of  1862 — remained  on  the  statute 
hook  until  the  adoption  of  the  recent  codes,  in  which  they 
are  substantially  embodied. 

“ lie  also  drew  bills  creating  the  counties  of  He  v ad  a and 
Klamath  and  gave  those  counties  their  names.  Many 
counties  also  sought  legislation  correcting  or  changing 
their  boundary  lines,  and  several  hills  on  the  subject  being 
referred  to  him  he  reported  a general  hill,  dividing  the 
State  into  counties  and  establishing  the  Seats  of  Justice 
therein,  which  was  passed.  Judge  Field  drew  the  char- 
ters of  the  cities  of  Marysville,  Hevada,  and  Monterey — 
the  latter  being  reported  as  a substitute  for  the  hill  intro- 
duced by  the  member  of  Monterey  County.  The  prin- 


cipal  provisions  of  these  charters  have  been  adopted  in 
subsequent  acts  creating  municipal  incorporations. 

“ He  also  drafted  the  act  concerning  divorces  which  was 
reported  from  the  Judiciary  Committee  as  a substitute  for 
a bill  on  the  same  subject  introduced  by  Mr.  Jesse  I).  Carr. 

“ It  has  always  been  a source  of  great  satisfaction  to  him 
that  he  gave  most  earnest  support  to  the  Homestead  Ex- 
emption Bill.  That  bill  was  introduced  by  Mr.  Gavin  D. 
Hall,  then  of  El  Dorado,  now  of  San  Francisco,  and  was 
assailed  violently  as  tending  to  obstruct  the  collection  of 
debts.  An  effort  to  reduce  the  amount  of  the  Homestead 
Exemption  from  $5,000  to  $3,000  was  stoutly  and  success- 
fully resisted  by  Judge  Field,  Judge  McCorkle,  and  the 
author  of  the  bill. 

“ The  session  of  1851  was  the  most  important  in  the  his- 
tory of  the  State.  It  was  the  first  one  held  after  the  ad- 
mission of  California  into  the  Union  ; and  some  of  the 
best  timbers  of  the  new  governmental  structure  are  of  the 
handiwork  of  Judge  Field.  His  labors  thei*e,  as  in  every 
other  station  to  which  he  has  been  called,  exhibit  great 
devotion  to  the  public  service,  untiring  industry,  and  a 
high  sense  of  the  responsibility  of  a public  officer.  Many 
bad  bills  were  defeated  through  his  influence  and  many  de- 
fective ones  amended  by  his  suggestions.  He  was  seldom 
absent  from  his  seat ; he  carefully  watched  all  measures  ; 
and  there  were  few  debates  in  which  he  did  not  participate. 
Such  is  the  universal  testimony  of  all  the  survivors  of  the 
legislative  body  of  1851,  and  its  truth  is  established  by  the 
Journals  of  the  Assembly  and  the  papers  of  the  time. 

“"We  are  specially  indebted  for  the  materials  of  this  ar- 
ticle to  information  derived  from  Judge  McCorkle,  Hon. 
Samuel  A.  Merritt,  and  Hon.  Jesse  D.  Carr,  who  were 
members  of  the  Legislature  with  Judge  Field.” 


In  addition  to  the  above,  Judge  Field  was  the  author  of 
the  act  concerning  attorneys  and  counsellors-at-law,  in 


14 


which  he  incorporated  provisions  rendering-  it  impossible 
for  any  judge  to  disbar  an  attorney  in  an  arbitrary  man- 
ner without  notice  of  the  charges  against  him,  and  giving 
him  an  opportunity  to  he  heard  upon  them  ; of  the  act 
concerning  county  recorders,  in  which  the  present  system 
of  keeping  the  records  of  conveyances  was  adopted  ; and  of 
the  act  concerning  county  sheriffs,  in  which  their  duties 
in  the  execution  of  process  and  in  keeping  prisoners  were 
declared  and  defined. 


STEPHEN  J.  FIELD 


AS  A 


JUDGE  OF  THE  SUPREME  COURT  OF  CALIFORNIA. 


In  1857  Mr.  Field  was  elected  Judge  of  the  Supreme 
Court  of  California  for  six  years,  commencing  January  1st, 
1858.  There  were  two  candidates  besides  himself  before 
the  people  for  the  position,  and  93,000  votes  were  polled. 
He  received  a majority  of  36,000  over  each  of  his  op- 
ponents, and  17,000  over  them  both  together.* 

In  September,  1857,  the  Chief  Justice  of  the  Court, 
Hugh  L.  Murray,  died,  and  one  of  the  associate  judges 
was  appointed  to  till  the  vacancy.  This  left  the  balance 
of  the  associate  judge’s  term  of  service,  which  extended 
to  the  following  January,  unoccupied,  and  Air.  Field  was 
appointed  by  the  governor  of  the  State — a political  oppo- 
nent— to  fill  it.  He  accepted  the  appointment,  and  took  his 
seat  on  the  bench  October  13th,  1857.  He  held  the  office 
of  associate  judge  until  the  resignation  of  Chief  Justice 
Terry  in  September,  1859,  when  he  became  Chief  Justice. 


* The  exact  vote  was  as  follows : 

For  S.  J.  Field 55,216 

For  Nathaniel  Bennett 18,944 

For  J.  P.  Ralston 19,068 


Total  vote 93,228 

Majority  of  Field  over  Bennett 36,272 

Majority  of  Field  over  Ralston 36,148 

Majority  of  Field  over  both 17.204 


lu  1863  Mr.  Field  was  appointed  by  President  Lincoln 
an  Associate  Justice  of  the  Supreme  Court  of  the  United 
States.  The  appointment  was  made  upon  the  unanimous 
recommendation  of  the  congressional  delegation  of  the 
Pacific  Coast,  then  consisting  of  four  Senators  and  four 
Members  of  the  House,  of  whom  five  were  Democrats 
and  three  Republicans  ; all  of  them  were  Union  men.  His 
commission  was  dated  March  10th,  1863,  but  as  he  desired, 
prior  to  leaving  the  State  bench,  to  dispose  of  the  cases 
which  had  been  argued  before  him,  he  did  not  take  the 
oath  of  office  until  the  20th  of  May  following.  He  sent  in 
his  resignation  to  the  governor  to  take  effect  on  that  day. 

Judge  Joseph  Gf.  Baldwin,  who  had  been  his  associate 
on  the  bench  for  three  years,  hearing  of  the  resignation, 
gave  expression  to  his  estimate  of  Mr.  Field’s  judicial 
career  in  the  following  communication  to  the  Sacramento 
Union,  which  appeared  in  that  paper  May  6th,  1863.  Judge 
Baldwin  was  himself  distinguished  alike  for  his  legal 
and  literary  attainments,  and  was  warmly  attached  to  his 
friend. 


JUDGE  FIELD. 

“ The  resignation  by  Judge  Field  of  the  office  of  Chief 
Justice  of  the  Supreme  Court  of  California,  to  take  effect 
on  the  20th  instant,  has  been  announced.  By  this  event 
the  State  has  been  deprived  of  the  ablest  jurist  who  ever 
presided  over  her  courts.  Judge  Field  came  to  California 
from  Hew  York  in  1849,  and  settled  in  Marysville.  He 
immediately  commenced  the  practice  of  law,  and  rose  at 
once  to  a high  position  at  the  local  bar,  and  upon  the  or- 
ganization of  the  Supreme  Court  soon  commanded  a.  place 
in  the  first  class  of  the  counsel  practicing  in  that  forum. 
For  many  years,  and  until  his  promotion  to  the  bench,  his 
practice  was  as  extensive,  and  probably  as  renumerative, 
as  that  of  any  lawyer  in  the  State.  He  served  one  or  two 
sessions  in  the  Legislature,  and  the  State  is  indebted  to 


17 


him  for  very  many  of  the  laws  which  constitute  the  body 
of  her  legislation.*  In  1857  he  was  nominated  for  Judge 
of  the  Supreme  Court  for  a full  term,  and  in  October  of 
the  same  year  was  appointed  by  Govenor  Johnson  to  till 
the  unexpired  term  of  Justice  Heydenfeldt,  resigned.  He 
immediately  entered  upon  the  office,  and  has  continued 
ever  since  to  discharge  its  duties.  Recently,  as  the  reader 
knows,  he  was  appointed  by  the  unanimous  request  of  our 
delegation  in  Congress,  to  a seat  upon  the  Bench  of  the 
Supreme  Court  of  the  United  States,  and  was  confirmed, 
without  opposition,  by  the  Senate. 

“ Like  most  men  who  have  risen  to  distinction  in  the 
United  States,  Judge  Field  commenced  his  career  without 
the  advantages  of  wealth,  and  he  prosecuted  it  without  the 
factitious  aids  of  family  influence  or  patronage.  He  had 
the  advantage,  however — which  served  him  better  than 
wealth  or  family  influence — of  an  accomplished  education, 
and  careful  study  and  mental  discipline.  He  brought  to 
the  practice  of  his  profession  a mind  stored  with  profes- 
sional learning,  and  embellished  with  rare  scholarly  attain- 
ments. He  was  distinguished  at  the  bar  for  his  fidelity  to 
his  clients,  for  untiring  industry,  great  care  and  accuracy 
in  the  preparation  of  his  eases,  uncommon  legal  acumen, 
and  extraordinary  solidity  of  judgment.  As  an  adviser, 
no  man  had  more  the  confidence  of  his  clients,  for  he  trus- 
ted nothing  to  chance  or  accident  when  certainty  could  be 
attained,  and  felt  his  way  cautiously  to  his  conclusions, 
which,  once  reached,  rested  upon  sure  foundations,  and  to 
winch  he  clung  with  remarkable  pertinacity.  Judges  soon 
learned  to  repose  confidence  in  his  opinions,  and  he  always 
gave  them  the  strongest  proofs  of  the  weight  justly  due  to 
his  conclusions. 

“ When  he  came  to  the  bench,  from  various  unavoidable 
causes  the  calendar  was  crowded  with  cases  involving  im- 
mense interests,  the  most  important  questions,  and  various 
and  pecular  litigation.  California  was  then,  as  now,  in  the 


2 


* He  was  in  the  Legislature  only  one  session. 


18 


development  of  her  multiform  physical  resources.  The 
judges  were  as  much  pioneers  of  law  as  the  people  of  settle- 
ment. To  he  sure  something  had  been  done,  hut  much 
had  yet  to  be  accomplished  ; and  something,  too,  had  to  he 
undone  of  that  which  had  been  done  in  the  feverish  and  an- 
omalous period  that  had  preceded.  It  is  safe  to  say  that,  even 
in  the  experience  of  new  countries  hastily  settled  by  hetero- . 
geneous  crowds  of  strangers  from  all  countries,  no  such  ex- 
ample of  legal  or  judicial  difficulties  was  ever  before  pre- 
sented as  lias  been  illustrated  in  the  history  of  California. 
There  was  no  general  or  common  source  of  jurisprudence. 
Law  was  to  be  administered  almost  without  a standard. 
There  was  the  civil  law,  as  adulterated  or  modified  by  Mex- 
ican provincialisms,  usages,  and  habitudes,  for  a great  part 
of  the  litigation ; and  there  was  the  common  law  for  another 
part,  but  ivhat  that  was  was  to  be  decided  from  tlie  con- 
flicting decisions  of  any  number  of  courts  in  America  and 
England,  and  the  various  and  diverse  considerations  of 
policy  arising  from  local  and  other  facts.  And  then,  con- 
tracts made  elsewhere,  and  some  of  them  in  semi-civilized 
countries,  had  to  be  interpreted  here.  Besides  all  which 
may  be  added  that  large  and  important  interests  peculiar 
to  this  State  existed — mines,  ditches,  etc. — for  which  the 
courts  were  compelled  to  frame  the  law,  and  make  a system 
out  of  what  was  little  better  than  chaos. 

“ When,  in  addition,  it  is  considered  that  an  unprece- 
dented number  of  contracts,  and  an  amount  of  business 
without  parallel,  had  been  made  and  done  in  hot  haste, 
with  the  utmost  carelessness  ; that  legislation  was  accom- 
plished in  the  same  way,  and  presented  the  crudest  and 
most  incongruous  materials  for  construction  ; that  the 
whole  scheme  and  organization  of  the  government,  and 
the  relation  of  the  departments  to  each  other,  had  to  be' 
adjusted  by  judicial  construction-  it  may  well  be  con- 
ceived what  task  even  the  ablest  jurist  would  take  upon 
himself  when  he  assumed  this  office.  It  is  no  small  com- 
pliment to  say  that  Judge  Field  entered  upon  the  duties 


of  this  great  trust  with  his  usual  zeal  and  energy,  and  that 
he  leaves  the  office  not  only  with  greatly  increased  repu- 
tation, but  that  he  has  raised  the  character  of  the  jurispru- 
dence of  the  State.  He  has  more  than  any  other  man  given 
tone,  consistency,  and  system  to  our  judicature,  and  laid 
broad  and  deep  the  foundation  of  our  civil  and  criminal  law. 
The  land  titles  of  the  State — the  most  important  and  per- 
manent of  the  interests  of  a great  commonwealth — have 
received  from  his  hand  their  permanent  protection,  and 
this  alone  should  entitle  him  to  the  lasting  gratitude  of 
the  bar  and  the  people. 

u His  opinions,  whether,  for  their  learning,  logic,  or  dic- 
tion, will  compare  favorably,  in  the  judgment  of  some  of 
our  best  lawyers,  with  those  of  any  judge  upon  the  Su- 
preme Bench  of  the  Union.  It  is  true  what  he  has  accom- 
plished has  been  done  with  labor  ; but  this  is  so  much 
more  to  his  praise,  for  such  work  was  not  to  be  hastily  done, 
and  it  was  proper  that  the  time  spent  in  perfecting  the 
work  should  bear  some  little  proportion  to  the  time  it 
should  last.  Ue  know  it  has  been  said  of  Judge  Field 
that  he  is  too  much  of  a 1 case  lawyer,’  and  not  sufficiently 
broad  and  comprehensive  in  Ids  views.  This  criticism  is 
not  just.  It  is  true  he  is  reverent  of  authority,  and  likes 
to  be  sustained  by  precedent  ; but  an  examination  of  his 
opinions  will  show  that,  so  far  from  being  a timid  copyist, 
or  the  passive  slave  of  authority,  his  rulings  rest  upon 
clearly  defined  principles  and  strong  common  sense. 

“ He  retires  from  office  without  a stain  opon  his  ermine. 
Millions  might  have  been  amassed  by  venality.  He  retires 
as  poor  as  when  he  entered — owing  nothing  and  owning 
little,  except  the  title  to  the  respect  of  good  men,  which  ma- 
lignant mendacity  can  not  wrest  from  a public  officer  who 
has  deserved,  by  a long  and  useful  career,  the  grateful  ap- 
preciation of  his  fellow-citizens.  AVe  think  that  we  may 
safely  predict  that,  in  his  new  place,  Justice  Field  will  fulfill 
the  sanguine  expectations  of  his  friends.” 

Sax  Fraxcisco,  May  1,  1863. 


J.  G.  B. 


It  will  be  observed  that  in  bis  communication  Judge 
Baldwin  places  great  stress  upon  the  action  of  Judge  Field 
in  the  settlement  of  land  titles.  Their  unsettled  condition 
when  he  went  on  the  bench  was  the  occasion  of  much 
litigation  as  well  as  animosity  between  persons  who  other- 
wise would  have  been  on  amicable  terms.  This  condi- 
tion arose  principally  from  three  causes:  1st,  the  immense 
extent  and  indefinite  boundaries  of  grants  from  the  former 
Mexican  government  ; 2d,  the  occupation  by  settlers  of 
lands  of  the  United  States  in  advance  of  measures  by  the 
government  for  their  sale;  and  3d,  the  claim  of  California 
to  own  the  gold  and  silver  found  in  all  lands  in  the  State. 

The  following  is  a brief  statement  as  to  these  causes  of 
disturbance  and  their  disposition  : 

1st.  As  to  the  Mexican  (/rants  : 

“ When  California  was  acquired,  the  population  was 
small  and  widely  scattered.  To  encourage  colonization, 
grants  of  land  in  large  quantities,  varying  from  one  to 
eleven  leagues,  had  been  made  to  settlers  by  the  Mexican 
government.  Only  small  tracts  were  subjected  to  cultiva- 
tion. The  greater  part  of  the  land  was  used  for  grazing 
cattle,  which  were  kept  in  immense  herds.  The  grants 
were  sometimes  of  tracts  with  defined  boundaries,  and 
sometimes  of  places  by  name,  but  more  frequently  of 
specified  quantities  lying  within  boundaries  embracing  a 
greater  amount.  By  the  Mexican  law,  it  was  incumbent 
upon  the  magistrates  of  the  vicinage  to  put  the  grantees 
in  possession  of  the  land  granted  to  them  ; and  for  that 
purpose  to  measure  off  and  segregate  the  quantity  desig- 
nated. Owing  to  the  sparseness  of  the  population  there 
was  little  danger  of  disputes  as  to  boundaries,  and  this  seg- 
regation in  the  majority  of  cases  had  been  neglected  be- 
fore our  acquisition  of  the  country.  From  the  size  of  the 
grants  and  the  want  of  definite  boundaries,  arose  nearly 
all  the  difficulties  and  complaints  of  the  early  settlers. 
Upon  the  discovery  of  gold,  immigrants  from  all  parts  of 


21 


the  world  rushed  into  the  country,  increasing  the  popula- 
tion in  one  or  two  years  from  a few  thousand  to  several 
hundred  thousand.  A large  number  crossed  the  plains 
from  the  Western  States,  and  many  of  them  sought  for 
farming  lands  upon  which  to  settle.  To  them  a grant  of 
land  leagues  in  extent  seemed  a monstrous  wrong  to  which 
they  could  not  be  reconciled.  The  vagueness,  also,  in 
many  instances,  of  the  boundaries  of  the  land  claimed 
gave  force  and  apparent  reason  to  their  objections.  They 
accordingly  settled  upon  what  they  found  unenclosed  or 
uncultivated,  without  much  regard  to  the  claims  of  the 
Mexican  grantees.  If  the  land  upon  which  they  thus  set- 
tled was  within  the  tracts  formerly  occupied  by  the  grant- 
ees with  their  herds,  they  denied  the  validity  of  grants  so 
large  in  extent.  If  the  boundaries  designated  enclosed  a 
greater  amount  than  that  specified  in  the  grants,  they  un- 
dertook to  locate  the  supposed  surplus.  Thus,  if  a grant 
were  of  three  leagues  within  boundaries  embracing  four, 
the  immigrant  would  undertake  to  appropriate  to  himself 
a portion  of  what  he  deemed  the  surplus  ; forgetting  that 
other  immigrants  might  do  the  same  thing,  each  claiming 
that  what  he  had  taken  was  a portion  of  such  surplus, 
until  the  grantee  was  deprived  of  his  entire  property. 

“When  the  Supreme  Court  of  California  was  brought  to 
consider  the  questions  to  which  this  condition  of  things 
gave  rise,  it  assumed  at  the  outset  that  the  obligations  of 
the  treaty  with  Mexico  were  to  be  respected  and  enforced. 
This  treaty  had  stipulated  for  the  protection  of  all  rights 
of  property  of  the  citizens  of  the  ceded  country;  and 
that  stipulation  embraced  inchoate  and  equitable  rights, 
as  well  as  those  which  were  perfect.  It  was  not  for  that 
Court  to  question  the  wisdom  or  policy  of  Mexico  in  mak- 
ing grants  of  such  large  portions  of  her  domain,  or  of 
the  United  States  in  stipulating  for  their  protection.  As 
Judge  Grier  said  in  his  opinion  in  the  case  of  The  United 
States  vs.  Sutherland,  in  the  19th  of  Howard,  the  rhetoric 
which  denounced  the  grants  as  enormous  monopolies  and 


princedoms  might  have  a just  influence  when  urged  to 
those  who  had  a right  to  give  or  refuse;  hut  as  the  United 
States  had  bound  themselves  by  a treaty  to  acknowledge 
and  protect  all  bona-fide  titles  granted  by  the  previous  gov- 
ernment, the  court  had  no  discretion  to  enlarge  or  contract 
such  grants  to  suit  its  own  sense  of  propriety  or  to  defeat 
just  claims,  however  extensive,  by  stringent  technical 
rules  of  construction  to  which  they  were  not  originally 
subjected.”  * 


* In  the  Fossatt  case  this  obligation  of  our  government  to  protect  the 
rights  of  Mexican  grantees  in  California  is  stated  in  brilliant  and  power- 
ful language  by  Judge  Black.  Keferring  to  the  land  claimed  by  one 
Justo  Larios,  a Mexican  grantee,  he  said:  “The  land  we  are  claiming 
never  belonged  to  this  government.  It  was  private  property  under  a 
grant  made  long  before  our  war  with  Mexico.  When  the  treaty  of  Gua- 
dalupe Hidalgo  came  to  be  ratified — at  the  very  moment  when  Mexico 
was  feeling  the  sorest  pressure  that  could  be  applied  to  her  by  the  force 
of  our  armies  and  the  diplomacy  of  our  statesmen — she  utterly  refused  to 
cede  her  public  property  in  California  unless  upon  the  express  condition 
that  all  private  titles  should  be  faithfully  protected.  We  made  the  prom- 
ise. The.  gentleman  sits  on  this  bench  (Judge  Clifford)  who  was  then 
our  Minister  there.  With  his  own  right  hand  he  pledged  the  sacred 
honor  of  this  nation  that  the  United  States  would  stand  over  the  grant- 
ees of  Mexico  and  keep  them  safe  in  the  enjoyment  of  their  property. 
The  pledge  was  not  only  that  the  government  itself  would  abstain  from 
all  disturbance  of  them,  but  that  every  blow  aimed  at  their  rights,  come 
from  what  quarter  it  might,  should  be  caught  upon  the  broad  shield  of 
our  blessed  Constitution  and  our  equal  laws.  It  was  by  this  assurance 
thus  solemnly  given  that  we  won  the  reluctant  consent  of  Mexico  to  part 
with  California.  It  gave  us  a domain,  of  more  than  imperial  grandeur. 
Besides  the  vast  extent  of  that  country,  it  has  natural  advantages  such  as 
no  other  can  boast.  Its  valleys  teem  with  unbounded  fertility,  and  its 
mountains  are  filled  with  inexhaustible  treasures  of  mineral  wealth.  The 
navigable  rivers  run  hundreds  of  miles  into  the  interior,  and  the  coast  is 
indented  with  the  most  capacious  harbors  in  the  world.  The  climate 
is  more  healthful  than  any  other  on  the  globe  : men  can  labor  longer 
with  less  fatigue.  The  vegetation  is  more  vigorous  and  the  products 
more  abundant ; the  face  of  the  earth  is  more  varied,  and  the  sky  bends 

over  it  with  a lovelier  blue.  That  was  what  we  gained  by  the 

promise  to  protect  men  in  the  situation  of  Justo  Larios,  their  children, 
their  alienees,  and  others  claiming  through  them.  It  is  impossible  that 
in  this  nation  they  will  ever  be  plundered  in  the  face  of  such  a pledge.” — 
(2  Wallace,  703.) 


“Acting  on  the  principle  — that  fidelity  to  a nation’s 
pledge  is  a sacred  duty,  and  that  justice  is  the  highest  in- 
terest of  the  country,  Judge  Field  endeavored,  whenever 
the  occasion  presented  itself,  and  his  associates  co-operated 
with  him,  to  protect  the  Mexican  grantees.  Their  grants 
contained  a stipulation  for  the  possession  of  the  lands 
granted,  inasmuch  as  they  were  subject  to  the  condi- 
tions of  cultivation  and  occupancy!  and  a failure  to  com- 
ply with  the  conditions  was  considered  by  the  tribunals  of 
the  United  States  as  a most  material  circumstance  in  the 
determination  of  the  right  of  the  grantees  to  a confirma- 
tion of  their  claims.  He  held,  therefore,  with  the  concur- 
rence of  his  associates,  that  the  grantees,  whether  they 
were  to  be  considered  as  having  a legal  or  an  equitable 
right  to  the  lands,  were  entitled  to  their  possession  until 
the  action  of  the  government  upon  their  claims,  and,  there- 
fore, that  they  could  recover  in  ejectment.”  If  the  grant 
was  a mere  float,  or  of  a quantity  to  be  selected  within 
vague  undetinable  boundaries  like  mountains,  as  in  the 
case  of  the  Mariposa  grant,  no  line  on  such  mountains,  from 
their  base  to  their  summit,  being  designated,  he  held  that 
the  grantee  was  to  be  confined  in  his  recovery  to  the  tract 
actually  used  and  occupied  by  him,  until  the  government 
intervened  and  determined  that  the  quantity  granted  to 
him  should  be  elsewhere  located.  But  if  the  grant  was 
not  a mere  float,  but  was  of  land  within  clearly  defined 
boundaries,  which  embraced  a greater  quantity  than  that 
specified  in  it,  with  a provision  that  the  surplus  should  be 
measured  of  by  the  government,  he  held  that  until  such 
measurement  the  grantee  was  a tenant  in  common  with 
the  government  and  could  hold  the  whole  as  against 
mere  intruders  and  trespassers.  As  he  said  in  one  of 
his  opinions,  speaking  for  the  court,  until  such  measure- 
ment no  individual  could  complain,  much  less  could  he 
be  permitted  to  determine  in  advance,  that  any  particu- 
lar locality  would  fall  within  the  supposed  surplus,  and 
thereby  justify  its  forcible  seizure  and  detention  by  him- 


24 


self.  “ If  one  person  could  in  this  way  appropriate  a par- 
ticular parcel  to  himself,  all  persons  could  do  so  ; and 
thus  the  grantee,  who  is  the  donee  of  the  government, 
would  be  stripped  of  its  bounty  for  the  benefit  of  those 
who  were  not  in  its  contemplation  and  were  never  in- 
tended to  be  the  recipients  of  its  favors.”  * 

These  views  have  since  met  with  general  assent  in 
California  and  have  been  approved  by  the  Supreme  Court 
of  the  United  States. t But  at  that  time  they  gave  otfence 
to  a large  class,  and  the  judges  were  accused  of  acting  in 
the  interest  of  monopolists  and  land-grabbers,  when  in 
fact  they  were  only  extending  to  the  grantees  the  protec- 
tion which  our  treaty  with  Mexico  stipulated. 


2d.  As  to  the  occupation  by  settlers  of  lands  of  the  United 
States  in  advance  of  measures  by  the  government  for  their  sale. 

u The  position  of  a large  portion  of  the  people  of  Cali- 
fornia, previous  to  1860,  with  respect  to  the  public  lands, 
was  unprecedented.  The  discovery  of  gold  had  brought, 
as  stated,  an  immense  immigration  to  the  country.  The 
slopes  of  the  Sierra  Nevada  were  traversed  by  many  of 
the  immigrants  in  search  of  the  precious  metals,  and  by 
others  the  tillable  land  was  occupied  for  agricultural  pur- 
poses. The  title  was  in  the  United  States,  and  until  1853 
there  had  been  no  legislation  authorizing  a settlement 
upon  any  of  the  public  lands,  and  for  some  years  after- 
wards the  public  surveys  were  extended  over  only  a por- 
tion of  them.  Conflicting  possessory  claims  naturally 
arose,  and  the  question  was  presented  as  to  the  law  ap- 
plicable to  them.  The  Legislature  in  1851  had  provided 
that  in  suits  before  magistrates  for  mining  claims,  evidence 
of  the  customs,  usages,  and  regulations  of  miners  in  their 
vicinage  should  be  admissible,  and,  when  not  in  conflict 


* Cornwall  vs.  Culver,  16  Cal.,  429,  and  Mahoney  vs.  Van  Winkle,  21 
Id.,  576-580. 

f Yan  Reynegan  vs.  Bolton,  95  U.  S.,  33. 


25 

with  the  constitution  and  laws  of  the  state,  should  gov- 
ern their  decision,  and  the  principle  thus  approved  was 
soon  applied  in  actions  for  mining  claims  in  all  courts. 
In  those  cases  it  was  considered  that  the  first  possessor  or 
appropriated  of  the  claim  had  the  better  right  as  against 
all  parties  except  the  government,  and  that  he,  and  per- 
sons claiming  under  him,  were  entitled  to  protection.  This 
principle  received  the  entire  concurrence  of  the  court,  and 
was  applied,  in  its  fullest  extent,  for  the  protection  of  all 
possessory  rights  on  the  public  lands.  Thus,  in  Coryell  vs. 
Cain,  Judge  Field  said,  speaking  for  the  court : 

“ It  is  undoubtedly  true,  as  a general  rule,  that  tlie  claimant  in  eject- 
ment must  recover  upon  the  strength  of  his  own  title,  and  not  upon  the 
weakness  of  his  adversary's,  and  that  it  is  a sufficient  answer  to  his  action 
to  show  title  out  of  him  and  in  a third  party.  But  this  general  rule  has, 
in  this  State,  from  the  anomalous  condition  of  things  arising  from  the 
peculiar  character  of  the  mining  and  landed  interests  of  the  country, 
been  to  a certain  extent  qualified  and  limited.  The  larger  portion  of  the 
mining  lands  within  the  State  belong  to  the  United  States,  and  yet  that 
fact  has  never  been  considered  as  a sufficient  answer  to  the  prosecution  of 
actions  for  the  recovery  of  portions  of  such  lands.  Actions  for  the  posses- 
sion of  mining  claims,  water  privileges,  and  the  like,  situated  upon  the 
public  lands,  are  matters  of  daily  occurrence,  and  if  the  proof  of  the  para- 
mount title  of  the  government  would  operate  to  defeat  them,  confusion 
and  ruin  would  be  the  result.  In  determining  controversies  between 
parties  thus  situated,  this  court  proceeds  upon  the  presumption  of  a 
grant  from  the  government  to  the  first  appropriator  of  mines,  water 
privileges,  and  the  like.  This  presumption,  which  would  have  no  place 
for  consideration  as  against  the  assertion  of  the  rights  of  the  superior  pro- 
prietor, is  held  absolute  in  all  those  controversies.  And  with  the  public 
lands  which  are  not  mineral  lands,  the  title,  as  between  citizens  of  the 
State,  where  neither  connects  himself  with  the  government,  is  considered 
as  vested  in  the  first  possessor,  and  to  proceed  from  him.  ” — (16  Cal.,  p. 
572.) 

The  doctrine  thus  laid  down  was  of  incalculable  benefit 
to  all  occupants  of  the  public  lands  of  the  United  States 
in  advance  of  measures  by  the  government  for  their  sale. 
It  preserved  peace  among  them,  and  gave  them  assurance 
that  they  would  be  protected  in  their  possessions  until 
the  general  government  should  interfere  and  assert  its 
superior  title. 


2$ 

3d.  As  to  the  claim  of  California  to  own  the  (/old  and  silver 
found  in  all  lands  in  the  State. 

“ The  difficulties  attendant  upon  any  attempt  to  give 
security  to  landed  possessions  in  the  State,  arising  from 
the  circumstances  narrated,  were  increased  by  an  opin- 
ion, which  for  some  time  prevailed,  that  the  precious 
metals,  gold  and  silver,  found  in  various  parts  of  the 
country,  whether  in  public  or  private  lands,  belonged  to 
the  State  by  virtue  of  her  sovereignty.  To  this  opinion  a 
decision  of  the  Supreme  Court  of  the  State,  made  in  1853, 
gave  great  potency.  In  Hicks  vs.  Bell,  decided  that  year, 
the  court  came  to  that  conclusion,  relying  upon  certain 
decisions  of  the  courts  of  England  recognizing  the  right 
of  the  Crown  to  those  metals.  The  principal  case  on  the 
subject  was  that  of  The  Queen  vs.  The  Earl  of  Northum- 
berland, reported  in  Plowden.  The  counsel  of  the  Queen 
in  that  case  gave,  according  to  our  present  notions,  some 
very  fanciful  reasons  for  the  conclusion  reached,  though 
none  were  stated  in  the  judgment  of  the  court.  The  Su- 
preme Court  of  the  State,  without  considering  the  force  of 
the  reasons  assigned  in  that  case  adopted  its  conclusion  ; 
and  as  the  gold  and  silver  in  the  British  realm  are  there 
held  to  belong  to  the  Crown,  it  was  concluded,  on  the  hy- 
pothesis that  the  United  States  have  no  municipal  sover- 
eignty within  the  limits  of  the  State,  that  they  must  be- 
long in  this  country  to  the  State.  The  State,  therefore, 
said  the  court,  “ has  solely  the  right  to  authorize  them  ” 
(the  mines  of  gold  and  silver)  “ to  be  worked;  to  pass 
laws  for  their  regulation  ; to  license  miners  ; and  to  affix 
such  terms  and  conditions  as  she  may  deem  proper  to  the 
freedom  of  their  use.  In  her  legislation  upon  this  subject 
she  has  established  the  policy  of  permitting  all  who  desire 
it  to  work  her  mines  of  gold  and  silver,  with  or  without 
conditions;  and  she  has  wisely  provided  that  their  conflict- 
ing claims  shall  be  adjudicated  by  the  rules  and  customs 
which  may  be  established  by  bodies  of  them  working  in  the 
same  vicinity.” — (3  Cal.,  227.) 


“ The  miners  soon  grasped  the  full  scope  of  the  decision 
thus  rendered,  and  the  lands  of  private  proprietors  were 
invaded  for  the  purpose  of  mining  as  freely  as  the  public 
lands.  It  was  the  policy  of  the  State  to  encourage  the 
development  of  the  mines,  and  no  greater  latitude  in  ex- 
ploration could  he  desired  than  was  thus  sanctioned  by  the 
highest  tribunal  of  the  State, 

“ It  was  not  long  before  a cry  came  up  from  private  pro- 
prietors against  this  invasion  of  their  possessions.  There 
was  gold  in  limited  quantities  scattered  through  large  and 
valuable  districts,  where  the  land  was  held  in  private  pro- 
prietorship, and  under  the  doctrine  announced  the  whole 
might  he  invaded,  and,  for  all  useful  purposes,  destroyed,  no 
matter  how  little  remunerative  the  product  of  the  mining. 
The  entry  might  he  made  at  all  seasons,  whether  the  land 
was  under  cultivation  or  not,  and  without  reference  to  its 
condition,  whether  covered  with  orchards,  vineyards,  gar- 
dens, or  otherwise.  It  was  evident  that  under  such  a state 
of  tilings  the  owner  of  mineral  land  would  never  he  se- 
cure in  his  possessions.  His  title  would  be  of  little  value 
if  there  was  a right  of  invasion  in  the  whole  world.  In 
fact,  the  land  would  he  to  him  poor  and  valueless  just  in 
proportion  to  the  actual  richness  and  abundance  of  its 
products. 

“ The  Court  was,  therefore,  compelled  to  put  some  limi- 
tation upon  the  enjoyment  by  the  citizen  of  this  asserted 
right  of  the  State.  Accordingly,  within  two  years  after- 
wards, it  held  that  although  the  State  was  the  owner  of 
the  gold  and  silver  found  in  the  lands  of  private  indi- 
viduals as  well  as  in  the  public  lands,  “ yet  to  authorize 
an  invasion  of  private  property  in  order  to  enjoy  a public 
franchise  would  require  more  specific  legislation  than  any 
yet  resorted  to.” — (Stoakes  vs.  Barrett,  5 Cal.,  -39.) 

“ The  spirit  to  invade  other  people’s  lands,  to  which  the 
original  decision  gave  increased  force,  could  not,  however, 
be  as  easily  repressed  as  it  pas  raised  in  the  crowd  of  ad- 
venturers who  filled  the  mining  regions.  And  when  Judge 


28 


Field  went  on  the  bench,  in  1857,  the  right  to  dig  for  the 
precious  metals  on  the  lands  of  private  individuals,  under  an 
assumed  license  of  the  State,  was  still  asserted.”  But  after- 
wards, in  the  case  of  Biddle  Boggs  vs.  The  Merced  Mining 
Company*  the  whole  subject  was  elaborately  examined, 
and  the  doctrine  repudiated.  Judge  Field  wrote  the  opin- 
ion of  the  Court,  which  attracted  much  attention.  The 
fallaciousness  of  the  reasoning  upon  which  the  doctrine 
rested  was  so  clearly  shown,  that  the  doctrine  has  never 
been  reasserted  since. 

“ At  a later  day  the  court  took  up  the  doctrine,  that  the 
precious  metals  belonged  to  the  State  by  virtue  of  her 
sovereignty,  and  exploded  it.  The  question  arose  in 
Moore  vs.  Smaw,  and  Fremont  vs.  Flower,  which  were 
heard  together. t In  disposing  of  it,  Judge  Field,  speak- 
ing for  the  court,  used  the  following  language  respecting 
the  sovereignty  of  the  State  : 

“ It  is  undoubtedly  true  that  the  United  States  held  certain  rights  of 
sovereignty  over  the  territory  which  is  now  embraced  within  the  limits 
of  California,  only  in  trust  for  the  future  State,  and  that  such  rights  at 
once  vested  in  the  new  State  upon  her  admission  into  the  Union.  But 
the  ownership  of  the  precious  metals  found  in  public  or  private  lands  was 
not  one  of  those  rights.  Such  ownership  stands  in  no  different  relation 
to  the  sovereignty  of  a State  than  that  of  any  other  property  which  is 
the  subject  of  barter  and  sale.  Sovereignty  is  a term  used  to  express  the 
supreme  political  authority  of  an  independent  State  or  Nation.  What- 
ever rights  are  essential  to  the  existence  of  this  authority  are  rights  of 
sovereignty.  Thus  the  right  to  declare  war,  to  make  treaties  of  peace, 
to  levy  taxes,  to  take  private  property  for  public  uses,  termed  the  right 
of  eminent  domain,  are  all  rights  of  sovereignty,  for  they  are  rights  es- 
sential to  the  existence  of  supreme  political  authority.  In  this  country, 
this  authority  is  vested  in  the  people,  and  is  exercised  through  the  joint 
action  of  their  federal  and  State  governments.  To  the  federal  govern- 
ment is  delegated  the  exercise  ot  certain  rights  or  powers  of  sovereignty ; 
and  with  respect  to  sovereignty,  rights  and  powers  are  synonymous 
terms ; and  the  exercise  of  all  other  rights  of  sovereignty,  except  as  ex- 
pressly prohibited,  is  reserved  to  the  people  of  the  respective  States,  or 
vested  by  them  in  their  local  governments.  When  we  say,  therefore,  that 
a State  of  the  Union  is  sovereign,  we  only  mean  that  she  possesses  su- 
preme political  authority,  except  as  to  those  matters  over  which  such  au- 


* 14  Cal.  Rep.,  373-380. 


f 17  Cal.  Rep.,  200. 


29 


thorityis  delegated  to  tlie  federal  government,  or  prohibited  to  the  States  ; 
in  other  words,  that  she  possesses  all  the  rights  and  powers  essential  to 
the  existence  of  an  independent  political  organization,  except  as  they  are 
withdrawn  by  the  provisions  of  the  Constitution  of  the  United  States. 
To  the  existence  of  this  political  authority  of  the  State — this  qualified 
sovereignty,  or  any  part  of  it — the  ownership  of  the  minerals  of  gold  and 
silver  found  within  her  limits  is  in  no  way  essential.  The  minerals  do  not 
differ  from  the  great  mass  of  property,  the  ownership  of  which  may  be 
in  the  United  States,  or  in  individuals,  without  affecting  in  any  respect 
the  political  jurisdiction  of  the  State.  They  may  be  acquired  by  the 
State,  as  any  other  property  may  be,  but  when  thus  acquired  she  will 
hold  them  in  the  same  manner  that  individual  proprietors  hold  their 
property,  and  by  the  same  right ; by  the  right  of  ownership,  and  not  by 
any  right  of  sovereignty.” 

“ The  court  also  held  that,  although  under  the  Mexican  law 
the  gold  and  silver  found  in  land  did  not  pass  with  a grant 
of  the  land,  a different  result  followed,  under  the  common 
law,  when  a conveyance  of  land  was  made  by  an  individual 
or  by  the  government.  By  such  a conveyance,  without 
a special  reservation,  everything  passed  in  any  way  con- 
nected with  the  land,  forming  a portion  of  its  soil  or  fixed 
to  its  surface. 

“ The  doctrine  of  the  right  of  the  State  by  virtue  of  her 
sovereignty  to  the  mines  of  gold  and  silver  within  her 
limits  perished  with  this  decision.  It  was  never  afterwards 
seriously  asserted.”  * 


*The  opinions  of  the  court  in  the  cases  cited  above — that  of  Biddle-Boggs 
vs.  Merced  Mining  Company,  and  that  of  Fremont  vs.  Flower — were  the 
subject  of  an  article  in  the  American  Law  Register  of  June,  1862,  by 
Mr.  Emory  Washburn,  Professor  of  Law  in  Harvard  University.  As  the 
two  cases  grew  out  of  the  Mariposa  grant,  the  Professor  treated  them  as 
substantially  one  case,  and  concluded  his  article  in  the  following 
language : 

“It  would  be  pleasant,  if  this  article  had  not  become  so  extended,  to 
dwell  for  a moment  upon  the  reflections  that  are  at  once  awakened,  as  one 
contemplates  the  various  phases  of  this  celebrated  case,  upon  the  silent 
yet  resistless  majesty  of  the  law,  so  long  as  its  robes  of  office  are  worn  by 
men  of  learning,  uprightness,  and  unsuspected  moral  courage,  acting 
within  their  sphere.  Here  bas  been  a controversy  involving,  it  is 
said,  millions  in  value,  as  well  as  many  considerations  of  great  hardship, 
exciting  not  a little  local  as  well  as  personal  feeling  and  animosity.  It  has 
been  passed  upon  by  three  men,  personally  without  power,  the  organs 
and  officers  of  the  law,  and  there  the  contest  ends,  for  the  law  has  spoken, 
and  we  are.  after  all,  a law-abiding  people.” 


Patents  for  Land  by  the  United  States. 

Patents  for  land  by  the  United  States,  particularly  those 
issued  upon  a confirmation  of  grants  in  California  of  the 
former  Mexican  government,  were  the  subject  of  repeated 
consideration  by  the  Supreme  Court  of  the  State  while 
Judge  Field  was  on  its  bench.  In  many  opinions  written 
by  him,  the  operation  of  such  patents  was  elaborately  and 
exhaustively  treated,  and  the  law  by  which  they  were  to  he 
construed,  their  efl'ect  in  giving  quiet  and  security  to  the 
patentees  in  the  possession  of  their  lands,  the  extent  to 
which  they  are  conclusive  against  attacks  at  law,  and  the 
circumstances  under  which  they  can  he  assailed  in  equity, 
were  stated  with  a clearness  and  precision,  which  left  noth- 
ing in  doubt  and  closed  the  door  to  much  vexatious  and 
harassing  litigation  touching  the  ownership  of  the  lands 
covered  by  them.  The  doctrines  advanced  by  him  have 
never  been  successfully  controverted,  and  they  have  been 
approved  by  the  Supreme  Court  of  the  United  States.* 

Municipal  Corporations. 

Municipal  corporations,  their  powers,  rights,  and  obliga- 
tions, were  also  the  subject  of  consideration  in  numerous 
opinions  of  the  Supreme  Court  of  California  written  by 
Judge  Field.  Judge  Dillon,  in  his  recent  work  on  Muni- 
cipal Corporations,  speaks  of  these  opinions  in  terms  of 
the  highest  praise,  makes  frequent  citations  from  them, 
and  recognizes  the  fact  that  the  views  contained  in  them 
have  been  concurred  in  very  generally  by  the  courts  of 
other  States. 

In  a series  of  adjudications  in  what  are  known  in  Cali- 
fornia as  the  “ City  Slip  Cases,”  where  property  of  the  city  of 


* Moore  vs.  Wilkinson,  13  Cal.,  478;  Biddle  Boggs  vs.  Merced  Mining 
Co.,  14  Id.,  361-366;  Stark  vs.  Barrett,  15  Id.,  362;  Mott  vs.  Smith, 
16  Id.,  534  ; Teschemacker  vs.  Thompson,  18  Id.,  20  ; Leese  vs.  Clark,  Id., 
565  ; Same  case  a second  time  before  the  court  in  20  Cal.,  411  ; Estrada 
vs.  Murphy,  19  Id.,  268.  See  also  Beard  vs.  Eedery.  3d  Wallace,  478. 


31 


San  Francisco  was  sold  under  a void  ordinance  and  the  pro- 
ceeds appropriated  for  municipal  purposes,  it  was  held,  that 
no  title  passed,  and  that  under  the  charter  of  the  city  (which 
required  sales  of  its  property  to  he  made,  by  an  ordinance 
adopted  for  that  purpose,  after  advertisement  of  the  time 
and  place  and  terms  of  sale)  the  appropriation  of  the  pro- 
ceeds did  not  operate  to  ratify  the  sales,  while  at  the  same 
time  it  imposed  upon  the  city  the  liability  to  pay  back  the 
money  to  the  purchasers.  It  would  seem  plain  that  if  the 
mere  appropriation  of  the  proceeds  obtained  under  a void 
ordinance  could  give  validity  to  a sale  of  the  city’s  prop- 
erty. the  restraints  imposed  by  the  legislature  upon  the 
action  of  the  city  would  be  easily  defeated.  Referring  to 
the  principles  stated  in  these  decisions,  Judge  Dillon  says 
that  they  “ are  vindicated  with  characteristic  clearness  and 
striking  logical  force,  in  able  and  interesting  opinions  of 
Mr.  Chief  Justice  Field.”  * 

Among  other  objections  against  a recovery  of  the 
money  paid  by  the  purchasers  upon  the  void  sale,  it  was 
urged,  that  the  common  council  of  the  city  was  forbidden 
by  its  charter  to  create  or  permit  to  be  created  any  debt 
or  liabilities,  which  in  the  aggregate,  with  all  former  debts 
or  liabilities,  should  exceed  $50,000  over  and  above  its 
annual  revenue,  unless  specially  authorized  by  an  ordi- 
nance providing  the  ways  and  means  for  the  payment  of 
the  annual  interest  and  of  the  principal,  and  Such  ordinance 
were  approved  by  a vote  of  the  people.  To  this  objection 
Judge  Field,  in  speaking  for  the  court, thus  replied: 

“ We  are  clear  that  the  provision  refers  only  to  the  acts  or  contracts 
of  the  city,  and  not  to  liabilities  which  the  law  may  cast  upon  her.  It 
was  intended  to  restrain  extravagant  expenditures  of  the  public  moneys ; 
not  to  justify  the  detention  of  the  property  of  her  citizens  which  she 
may  have  unlawfully  obtained.  The  plaintiff  claims  that  the  city  has 
got  his  money  without  any  consideration — by  mistake — and  has  appro- 


* McCracken  vs.  The  City  of  San  Francisco,  16  Cal.,  591 : Grogan  vs.  San 
Francisco,  18  Id.,  607 ; Pimental  vs.  San  Francisco,  21  Id.,  359.  See  also 
Argenti  vs.  City  of  San  Francisco,  16  Cal.,  282,  and  Zottman  vs.  San 
Francisco,  20  Cal..  96. 


printed  it  to  municipal  purposes,  and  he  insists  that  she  is  responsible  to 
him  for  it,  because  the  law — not  her  contract  or  permission — renders  her 
liable.  Her  liability,  in  this  respect,  is  independent  of  the  restraining 
clauses  of  the  charter;  it  arises  from  the  obligation  to  do  justice — to  re- 
store what  belongs  to  others — which  rests  upon  all  persons,  whether  nat- 
ural or  artificial.  And  it  may  well  be  doubted  whether  it  would  be  com- 
petent for  tbe  legislature  to  exempt  the  city,  any  more  than  private  indi- 
viduals, from  liability  under  circumstances  of  this  character.  Suppose, 
for  example,  that  the  city  should  recover  judgment  against  an  individual 
for  $100,000,  and  collect  the  money  upon  execution,  and  upon  appeal  the 
judgment  should  be  reversed;  would  it  be  pretended  that  the  money 
could  not  afterwards  be  recovered?  Could  the  city  defend  against  the 
claim  for  restitution  upon  the  pretence  that  she  was  already  indebted 
over  $50,000?  Could  she,  to  use  the  language  of  counsel,  owe  herself  out 
of  liability  ? Suppose,  again,  an  individual  should  pay  the  taxes  upon 
his  property,  in  ignorance  that  they  had  already  been  paid  by  his  agent, 
could  the  city  retain  the  amount  thus  paid  by  mistake?  Could  she 
plead  her  previous  indebtedness  as  an  excuse  for  the  detention  of  the 
money  to  which  she  had  no  legal  or  equitable  right  ? Suppose,  again,  the 
city  should  neglect  to  keep  the  streets  in  repair,  and  an  individual  should 
be  injured  in  consequence — should  break  bis  leg  or  be  otherwise  crippled — 
could  she  allege  her  insolvency  against  his  claim  for  damages?  Would 
her  pecuniary  condition  be  an  answer  for  the  neglect  of  every  duty,  legal 
and  moral?  If  this  were  so,  she  would  be  the  most  irresponsible  corpo- 
ration on  earth,  and  her  treasury  would  be,  in  many  instances,  but  a 
receptacle  for  others’  property  without  possibility  of  restitution.  The 
truth  is,  there  is  no  such  exemption  from  liability  on  her  part-.  The  same 
obligations  to  do  justice  rest  upon  her  as  rest  upon  individuals.  She 
cannot  appropriate  to  her  own  use  the  property  of  others,  and  screen 
herself  from  responsibility  upon  any  pretence  of  excessive  indebtedness. 
The  law  casts  upon  her  the  legal  liability  from  the  moral  duty  to  make 
restitution.  Admitting  that  the  charter  restricts  her  power  to  incur  lia- 
bilities by  her  own  acts, it  still  leaves  her  liable  according  to  the 

general  law.  The  restriction  can,  in  any  event,  only  apply  to  liabilities 
dependent  for  their  creation  upon  the  volition  of  the  common  council, 
and  hence  does  not  include  liabilities  arising  from  torts,  or  trespasses,  or 
mistakes.” — (McCracken  vs.  The  City  of  San  Francisco,  16  Cal.,  631-2.) 


Mortgages. 

While  Judge  Field  was  on  the  bench  the  law  of  mort- 
gages in  California  was  settled  in  conformity  with  the 
common  understanding  of  men.  Opinions  of  the  court, 
written  by  him,  made  that  the  rule  of  law  which  was  be- 
fore tbe  rule  of  equity,  namely  : that  a mortgage  is  not  a 


conveyance,  but  a pledge  only,  redeemable  by  compliance 
with  the  condition  on  which  it  was  given.  Herman,  the 
author  of  a recent  and  most  learned  work  on  mortgages, 
expresses  the  opinion  that  “ X o man  in  this  country  has 
done  as  much  in  developing  sound  principles  in  regard  to 
mortgages — that  they  are  mere  hypothecations — as  Judge 
Field.  To  his  labors  on  the  Supreme  Bench  of  California, 
and  in  the  United  States  Supreme  Court,  have  been  in- 
debted the  courts  of  every  State  where  the  doctrine  is 
maintained  ; and  his  California  opinions  are  cited  as  lead- 
ing and  decisive  of  the  true  principle.”* 

Other  Cases. 

Numerous  other  cases  besides  those  to  which  reference 
has  been  made,  presenting  a great  variety  of  questions, 
some  of  general  and  public  interest,  and  others  of  local 
concern,  were  before  the  court  whilst  Judge  Field  was 
on  the  bench,  in  which  he  gave  the  opinion  of  the  court. 
It  would  extend  this  sketch  beyond  the  design  of  the  writer 
to  give  even  a syllabus  of  the  cases.  They  related  to 
the  claim  of  the  State  to  live  hundred  thousand  acres  of 
land  donated  by  the  8th  section  of  the  Act  of  Congress  of 
Sept.  4th,  1841,  for  purposes  of  internal  improvement, 
and  to  its  right  to  dispose  of  the  lands  in  advance  of  the 
public  surveys  ; — to  contracts  of  the  State  for  the  support 
and  labor  of  its  convicts  ; — to  the  pow*er  of  the  courts  to 
compel  by  mandamus  officers  of  the  State  to  do  their 
duty  ; — to  the  conflicting  rights  of  miners  to  the  use  of 
the  water  of  streams  in  the  mountains  for  the  purpose  of 
mining  ; — to  the  right  of  the  wife  to  a share  of  the  com- 
munity property  under  the  law  of  Mexico  and  the  law  of 
California  ; — to  the  title  of  the  City  of  San  Francisco  to 
lands  within  her  limits  as  successor  of  a former  Mexican 
Pueblo  and  under  the  grant  of  beach  and  water  lots  by  the 


* McMillan  vs.  Richards,  9 Cal.,  365  ; Nagievs.  Macy,  9 Id.,  426  ; John- 
son vs.  Sherman,  15  Id.,  287 ; Goodenovv  vs.  Ewer,  16  Id.,  461. 

3 


34 


State  in  1851  ; — to  the  construction  of  wills  ; — to  the  dis- 
tinction between  mortgages  and  deeds  of  trust  ; and  to  a 
great  number  of  other  subjects.  A citation  is  given  in 
the  note  of  several  of  these  cases.* 

Two  cases  not  included  among  these  deserve  special 
notice; — in  one  of  which — Ex-pa rtc  Newman,  (9  Cal.,  502,) 
relating  to  a law  making  Sunday  a day  of  rest — Judge 
Field  wrote  a dissenting  opinion;  and  in  the  other — Perry 
vs.  Washburn,  (20  Cal.,  318,)  asserting  the  non-receiva- 
bility  of  legal-tender  notes  for  State  taxes — lie  wrote  the 
opinion  of  the  court. 

A Sunday  Law,  or  a Law  for  a Day  of  Rest. 

In  Ex-parte  Newman  the  question  arose  as  to  the  validity 
of  a law  of  California,  which  provided  that  no  person 
should  keep  open  on  Sunday  “ any  store,  warehouse,  me- 
chanic shop,  workshop,  banking-house,  manufacturing 
establishment,  or  other  business  house,  for  business  pur- 
poses ;”  or  “ sell  or  expose  for  sale  any  goods,  wares,  or 
merchandise”  on  that  day  ; and  that  a violation  of  these 
provisions  should  be  deemed  a misdemeanor  for  which  a 
penalty  was  prescribed.  The  law  excepted  from  its  opera- 
tion the  keepers  of  hotels,  inns,  taverns,  restaurants,  board- 
ing houses,  and  livery  stables,  and  the  retailers  of  drugs 
and  medicines,  and  certain  articles  of  fresh  food  and  ar- 
ticles required  in  cases  of  necessity  or  charity.  Xor  did 
the  law  apply  to  such  manufacturing  or  other  business 
establishments  as  were  necessarily  required  .to  be  kept  in 
continual  operation  to  accomplish  their  business. 


* Butte  Canal  and  Ditch  Co.  vs.  Vaughan,  11  Cal.,  153 ; Baker  vs.  Baker, 

13  Id.,  87  ; Pierce  vs.  Robinson,  13  Id.,  116  ; Blanding  vs.  Burr,  1 3 Id.,  343  ; 
Scott  vs.  Ward,  13  Id.,  458  ; Koch  vs.  Briggs,  14  Id.,  256;  Noe  vs.  Card, 

14  Id.,  577  ; Pixley  vs.  Huggins,  15  Id.,  128;  Norris  vs.  Harris,  15  Id.,  226  ; 
State  of  California  vs.  McCauley,  15  Id.,  429 ; Holliday  vs.  Frisbie,  15  Id., 
630 ; McCauley  vs.  Brooks,  16  Id.,  12  ; Koppikus  vs.  State  Capital  Com- 
missioners, 16  Id.,  249  ; Brumagim  vs.  Tillingkast,  16  Id.,  267;  Doll  vs. 
Meador,  16  Id.,  295  ; Halleck  vs.  Mixer,  16  Id.,  575. 


Tliis  law  the  majority  of  the  court  decided  to  he  in  con- 
flict with  the  clause  of  the  constitution  which  declared 
that  “ the  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination  or  preference,” 
should  forever  he  allowed  in  the  State,  holding  that  in 
enforcing  cessation  from  labor  on  a day  held  sacred  by  a 
religious  sect  was  a discrimination  in  favor  of  that  sect. 
The  court  also  decided  that  the  Legislature  had  no  right 
to  forbid  the  pursuit  of  a lawful  occupation  on  one  day  of 
a week,  any  more  than  it  had  a right  to  forbid  it  altogether, 
under  the  clause  of  the  constitution  declaring  that  all 
men  have  the  inalienable  right  of  “ acquiring,  possessing, 
and  protecting  property.” 

From  this  decision  Judge  Field  dissented,  holding  that 
the  law  only  prescribed  a day  of  rest  from  certain  occu- 
pations as  a rule  of  civil  conduct,  and  had  nothing  to  do 
with  religious  profession  or  worship,  to  which  it  did  not 
allude  in  any  of  its  provisions.  And  be  tlms  vindicated 
its  wisdom  : 

“In  its  enactment  the  Legislature  has  given  the  sanction  of  law  to  a 
rule  of  conduct  which  the  entire  civilized  world  recognizes  as  essential 
to  the  physical  and  moral  well-being  of  society.  Upon  no  subject  is 
there  such  a concurrence  of  opinion  among  philosophers,  moralists,  and 
statesmen  of  all  nations,  as  on  the  necessity  of  periodical  cessations  from 
labor.  One  day  in  seven  is  the  rule,  founded  in  experience  and  sus- 
tained by  science.  There  is  no  nation,  possessing  any  degree  of  civiliza- 
tion, where  the  rule  is  not  observed,  either  from  the  sanctions  of  the  law 
or  the  sanctions  of  religion.  This  fact  has  not  escaped  the  observation 
of  men  of  science,  and  distinguished  philosophers  have  not  hesitated  to 
pronounce  the  rule  founded  upon  a law  of  our  race. 

“ The  Legislature  possesses  the  undoubted  right  to  pass  laws  for  the 
preservation  of  health  and  the  promotion  of  good  morals,  and  if  it  is  of 
opinion  that  periodical  cessation  from  labor  will  tend  to  both,  and  thinks 
proper  to  carry  its  opinion  into  a statutory  enactment  on  the  subject, 
there  is  no  power,  outside  of  its  constituents,  which  can  sit  in  judgment 
upon  its  action.  It  is  not  for  the  judiciary  to  assume  a wisdom  which  it 
denies  to  the  Legislature,  and  exercise  a supervision  over  the  discretion 
of  the  latter.  It  is  not  the  province  of  the  judiciary  to  pass  upon  the 
wisdom  and  policy  of  legislation ; and  when  it  does  so,  it  usurps  a power 
never  conferred  by  the  constitution. 

“ It  is  no  answer  to  the  requirements  of  the  statute  to  say  that  mankind 
will  seek  cessation  from  labor  by  the  natural  influences  of  self-preserva- 


tion.  The  position  assumes  that  all  men  are  independent,  and  at  liberty 
to  work  whenever  they  choose.  Whether  this  be  true  or  not  in  theory, 
it  is  false  in  fact ; it  is  contradicted  by  every  day’s  experience.  The  rela- 
tions of  superior  and  subordinate,  master  and  servant,  principal  and  clerk, 
always  have  and  always  will  exist.  Labor  is  in  a great  degree  depend- 
ent upon  capital,  and  unless  the  exercise  of  the  power  which  capital 
affords  is  restrained,  those  who  are  obliged  to  labor  will  not  possess  the 

freedom  for  rest  which  they  would  otherwise  exercise. —The  law  steps 

in  to  restrain  the  power  of  capital.  Its  object  is  not  to  protect  those  who 
can  rest  at  their  pleasure,  but  to  afford  rest  to  those  who  need  it,  and 
who,  from  the  conditions  of  society,  could  not  otherwise  obtain  it.  Its  aim 
is  to  prevent  the  physical  and  moral  debility  which  springs  from  unin- 
terrupted labor ; and  in  this  aspect  it  is  a beneficent  and  merciful  law. 
It  gives  one  day  to  the  poor  and  dependent;  from  the  enjoyment  of 
which  no  capital  or  power  is  permitted  to  deprive  them.  It  is  theirs  for 
repose,  for  social  intercourse,  for  moral  culture,  and,  if  they  choose,  for 
divine  w'orship.  Authority  for  the  enactment  I find  in  the  great  object 
of  all  government,  jwhich  is  protection.  Labor  is  a necessity  imposed  by 
the  condition  of  our  race,  and  to  protect  labor  is  the  highest  office  of  our 
laws.” 

Indeed,  every  one  can  see  that  the  only  chance  for  rest 
to  the  over-worked  laboring  classes  in  our  factories  and 
workshops,  and  in  the  heated  rooms  of  our  cities,  is  in  a 
law  compelling  cessation  from  secular  pursuits  at  regular 
intervals.  Without  it  there  would  be  for  them  only  cease- 
less toil.  To  them,  therefore,  such  a law  is  a great  bless- 
ing. It  enables  them,  one  day  in  a week,  to  be  with  their 
families  ; to  seek  with  them  the  pure  air  of  the  country; 
to  visit  gardens,  and  places  for  quiet  enjoyment ; to  ex- 
change courtesies  with  friends  and  relatives,  and  to  be  free 
from  the  perpetual  din  of  the  shop,  and  the  ever-pressing 
thought  that  only  by  the  sweat  of  their  brow  the}"  can 
earn  their  daily  bread.  To  the  objection  that  Sunday  is 
a day  of  religious  observance  by  certain  sects,  Judge  Field 
answered  as  follows  : 

“ The  power  of  selection  being  in  the  Legislature,  there  is  no  valid  rea- 
son why  Sunday  should  not  be  designated  as  well  as  any  other  day.  Prob- 
ably no  day  in  the  week  could  be  taken  which  would  not  be  subject  to 
some  objection.  That  the  law  operates  with  inconvenience  to  some  is  no 
argument  against  its  constitutionality.  Such  inconvenience  is  an  incident 
to  all  general  laws.  A civil  regulation  cannot  be  converted  into  a relig- 
ious institution  because  it  is  enforced  on  a day  that  a particular  religious 


sect  regards  as  sacred. The  fact  that  the  civil  regulation  finds  support 

in  the  religious  opinion  of  a vast  majority  of  the  people  of  California  is  no 
argument  against  its  establishment.  It  would  he  fortunate  for  society  if 
all  wise  civil  rules  obtained  a ready  obedience  from  the  citizen,  not 
merely  from  the  requirements  of  the  law,  but  from  conscientious  or  relig- 
ious convictions  of  their  obligation.  The  law  against  homicide  is  not  the 
less  wise  and  necessary  because  the  divine  command  is  ‘thou  shalt  do  no 
murder.’  The  legislation  against  perjury  is  not  the  less  useful  and  essen- 
tial for  the  due  administration  of  justice  because  the  injunction  comes 
from  the  Most  High,  ‘ thou  shalt  not  bear  false  witness  against  thy  neigh- 
bor.’ The  establishment  by  law  of  Sunday  as  a day  of  rest  from  labor, 
is  none  the  less  a beneficent  and  humane  regulation  because  it  accords 
with  the  divine  precept  that  upon  that  day  ‘ thou  shalt  do  no  manner  of 
work  ; thou,  and  thy  son,  and  thy  daughter,  thy  man-servant  and  thy 
maid-servant,  thy  cattle,  and  the  stranger  that  is  within  thy  gates.’  ” 

To  the  objection  that  the  law  was  in  conflict  with  the 
clause  declaring  the  inalienable  rights  of  all  men  to  acquire, 
possess,  and  protect  property,  he  answered  that  the  clause 
was  never  intended  to  inhibit  legislation  upon  them,  and 
that  the  mode  and  manner  of  acquiring,  possessing,  and 
protecting  property  were  matters  upon  which  laws  were 
passed  at  every  every  session  of  the  Legislature. 

“ All  sorts  of  restrictions  and  regulations,”  he  added,  “ are  placed  upon 
the  acquisition  and  disposition  of  property.  What  contracts  are  valid, 
and  what  are  invalid,  when  they  must  be  in  writing,  and  when  they  can  be 
made  by  parol,  what  is  essential  to  transfer  chattels,  and  what  to  convey 
realty,  are  matters  of  constant  legislation.  Some  modes  of  acquisition 
are  subject  to  licenses,  and  some  are  prohibited.  The  right  to  acquire 
property,  with  the  use  of  it.  must  be  considered  in  relation  to  other  rights. 
It  may  be  regulated  for  the  public  good,  though  thereby  the  facility  of 
acquisition  is  lessened,  as  in  the  sale  of  gunpowder  and  drugs,  and  in  the 

practice  of  different  professions. To  say  that  a prohibition  of  work 

on  Sunday  prevents  the  acquisition  of  property,  is  to  beg  the  question. 
With  more  truth  it  may  be  said,  that  rest  upon  one  day  in  seven  better 
enables  men  to  acquire  on  the  other  six.” — (9  Cal.,  527.) 

The  decision  of  the  court  was  rendered  at  the  April  term 
in  1858.  In  1861  the  Legislature  passed  another  Sunday 
law  similar  in  its  provisions' to  the  one  declared  to  be  un- 
constitutional, and  at  the  July  term  of  that  year  the  court 
held  it  to  he  constitutional,  thus  overruling  the  decision  in 
Ex-parte  Newman,  and  adopting  the  views  expressed  by 
Judge  Field  in  his  dissenting  opinion  in  that  case. — (18 
Cal,  680.) 


The  Xon-receivability  of  Legal-Texder  Xotes  for 
State  Taxes. 

In  Perry  vs.  Washburn  the  question  arose  whether 
Treasury  notes  of  the  United  States  were  receivable  for 
state  and  county  taxes.  The  act  of  Congress  made  such 
notes  “ a legal  tender  in  payment  of  all  debts,  private  and 
public.”  The  court  held  that  Congress  only  intended  by 
debts  such  obligations  for  the  payment  of  money  as  are 
founded  upon  contract.  Judge  Field  gave  the  opinion  of 
the  court,  and  in  speaking  on  this  point  he  said  : 

“ The  act  does  not,  in  our  judgment,  have  any  reference  to  taxes  levied 
under  the  laws  of  the  State.  It  only  speaks  of  taxes  due  to  the 
United  States,  and  distinguishes  between  them  and  debts.  Its  language 
is,  1 for  all  taxes,  internal  duties,  excises,  debts,  and  demands  of  every 
kind  due  to  the  United  States,  the  notes  shall  be  receivable.”  When 
it  refers  to  obligations  other  than  those  to  the  United  States  it  only  uses 
the  term  ‘debts’ ; the  notes  it  declares  shall  be  ‘a  legal  tender  in  payment 
of  all  debts  public  and  private.’  Taxes  are  not  debts  within  the  meaning 
of  this  provision.  A debt  is  a sum  of  money  due  by  contract,  express  or 
implied.  A tax  is  a charge  upon  persons  or  property  to  raise  money  for 
public  purposes.  It  is  not  founded  upon  contract ; it  does  not  establish 
the  relation  of  debtor  and  creditor  between  the  taxpayer  and  State;  it 
does  not  draw  interest ; it  is  not  the  subject  of  attachment ; and  it  is  not 
liable  to  set-off.  It  owes  its  existence  to  the  action  of  the  legislative 
power,  and  does  not  depend  for  its  validity  or  enforcement  upon  the  in- 
dividual assent  of  the  taxpayer.  It  operates  in  invitum .” 

Independent  of  the  consideration  mentioned,  it  is  evi- 
dent that  the  States  can  collect  their  taxes  in  such  way  as 
they  may  see  fit — in  goods  as  well  as  money,  as  was  for- 
merly done  in  some  of  the  States;  and  that  this  right  has 
never  been  surrendered  to  the  general  government.  This 
case  is  important  as  being  the  first  one  in  which  the  re- 
ceivability  of  legal-tender  notes  for  State  taxes  was  brought 
before  the  courts  for  adjudication. 

The  Supreme  Court  of  the  United  States  cited  the  de- 
cision with  approval  and  followed  it  in  Lane  County  vs. 
Oregon  (7  Wall.,  71). 


STEPHEN  J.  FIELD 


AS  A 

JUDGE  OF  THE  SUPREME  COURT  OF  THE 
UNITED  STATES. 


Mr.  Field  was  commissioned  as  a Justice  of  the  Supreme 
Court  of  the  United  States  on  the  10th  of  March,  1863,  but 
he  did  not  take  the  oath  of  office  until  the  20th  of  May 
afterwards.  In  June  following  he  was  assigned  by  the 
President  to  the  Tenth  Circuit,  then  consisting  of  the 
States  of  California  and  Oregon.*  When  Nevada  became 
a State  she  was  included  in  the  circuit.  As  a member  of 
the  Supreme  Court  he  was  required  to  attend  the  sessions 
of  the  court  at  Washington  in  the  winter,  and  hold  the 
Circuit  Court  in  his  circuit  in  the  summer.  He  was  thus 
compelled,  until  the  overland  railroad  was  completed,  to 
travel,  going  by  the  way  of  the  Isthmus,  over  twelve  thou- 
sand miles  a year,  and  now  since  the  completion  of  the  road 
he  is  obliged  to  travel  over  eight  thousand  miles  a year. 
When  his  office  was  created  he  was  allowed  one  thousand 
dollars  a year  for  his  travelling  expenses,  but  in  1871  Con- 
gress repealed  the  law  allowing  this  sum;  and  now,  notwith- 
standing the  immense  distance  he  has  to  travel,  and  the 


* Under  the  5tli  section  of  the  “Act  to  amend  the  judicial  system  of 
the  United  States”  of  April  29th,  1802,  (2  Stats,  at  Large,  p.  156,)  the 
President  is  authorized  to  allot  the  Justices  of  the  Supreme  Court  to 
the  circuits  -when  a new  justice  is  appointed  iu  the  recess  of  the  court; 
such  allotment  to  remain  until  a new  allotment  is  made  by  the  justices 
among  themselves. — (See  2d  Black’s  Rep.,  p.  7.) 


40 


great  expenses  to  which  he  is  thus  subjected  beyond  those 
imposed  upon  his  associates,  he  is  forced  to  meet  them 
out  of  his  regular  salary.  He  has  never  failed  to  visit 
his  circuit  any  year  since  his  appointment,  although  since 
the  passage  of  the  act  of  1S69,  providing  for  the  appoint- 
ment of  circuit  judges,  he  has  not  been  required  to  attend 
a term  in  his  circuit  but  once  in  two  years.  Of  the  many 
important  cases  tried  and  disposed  of  by  him  there,  men- 
tion will  be  made  hereafter. 

When  he  went  on  the  Supreme  Bench,  Taney  was  Chief 
Justice,  and  Wayne,  Catron , Nelson , Grier, Clifford , Swayn e , 
Miller,  and  Davis  were  associate  justices.  Chief  Justice 
Taney  died  in  the  following  year,  and  Mr.  Chase  was  ap- 
pointed his  successor.  The  business  of  the  court  is  always 
greater  than  can  be  disposed  of  by  the  judges,  and  at 
every  session  cases  involving  important  principles  are  de- 
cided. But  those  which  have  attracted  the  greatest  atten- 
tion, and  excited  the  deepest  interest  since  1863,  have 
grown  out  of  the  civil  war  and  the  legislation  to  which  it 
gave  rise. 

The  Milligan  Case. 

“ One  of  the  earliest  and  most  important  cases  of  this 
kind  was  the  Milligan  case.  In  October,  1864,  Milligan, 
a citizen  of  the  United  States  and  a resident  of  Indiana, 
was  arrested  by  order  of  the  military  commander  of  the 
district  and  confined  in  a military  prison  near  the  capital 
of  the  State.  He  was  subsequently,  on  the  21st  of  the 
same  month,  put  on  trial,  before  a military  commission 
convened  at  Indianapolis,  in  that  State,  upon  charges  of : 
1st,  Conspiring  against  the  Government  of  the  United 
States  ; 2d,  Affording  aid  and  comfort  to  the  rebels  against 
the  authority  of  the  United  States  ; 3d,  Inciting  insur- 
rection ; 4th,  Disloyal  practices  ; and  5th,  Violation  of 
the  laws  of  war  ; and  was  found  guilty  and  sentenced  to 
death  by  hanging.  He  was  never  in  the  military  ser- 
vice ; there  was  no  rebellion  in  Indiana  ; and  the  civil 


41 


courts  were  open  in  that  State  and  in  the  undisturbed  ex- 
ercise of  their  jurisdiction,  The  sentence  of  the  military 
commission  was  affirmed  by  the  President,  who  directed 
that  it  should  he  carried  into  immediate  execution.  The  con- 
demned thereupon  presented  a petition  to  the  Circuit  Court 
of  the  United  States  in  Indiana  for  a writ  of  habeas  corpus, 
praying  to  he  discharged  from  custody,  alleging  the  ille- 
gality of  his  arrest  and  of  the  proceedings  of  the  military 
commission.  The  judges  of  the  Circuit  Court  were  di- 
vided in  opinion  upon  the  question  whether  the  writ  should 
be  issued  and  the  petitioner  discharged,  which,  of  course, 
involved  the  jurisdiction  of  the  military  commission  to  try 
him.  Upon  a certificate  of  division  the  case  was  brought 
to  the  Supreme  Court  at  the  December  term  of  1865. 

The  case  was  elaborately  argued  by  able  and  distinguished 
counsel,  consisting  of  Mr.  Joseph  F.  McDonald,  now  U. 
S.  Senator  from  Indiana,  Mr.  James  A.  Garfield,  a dis- 
tinguished member  of  Congress,  Mr,  Jeremiah  S,  Black, 
the  eminent  jurist  of  Pennsylvania,  and  Mr,  David  Dudley 
Field,  of  Few  York,  for  the  petitioner  ; and  by  Mr.  Henry 
Stanbery,  the  Attorney-General,  and  Gen,  B.  F,  Butler, 
for  the  government.  Their  arguments  were  remarkable 
for  learning,  research,  ability,  and.  eloquence,  and  will 
repay  the  careful  perusal  not  only  of  the  student  of  law, 
but  of  all  lovers  of  constitutional  liberty.  The  judgment 
of  the  court  was  for  the  liberty  of  the  citizen.  All  the 
judges  agreed  to  his  discharge,  but  the  opinion,  which  has 
given  so  much  celebrity  to  the  case,  and  placed  the  protec- 
tion of  the  citizen,  in  States  where  the  civil  courts  are  open, 
on  solid  grounds,  obtained  the  approval  of  only  five  of  the 
judges  against  four  of  them.  Judge  Field  was  one  of  the  five; 
his  vote  was  essential  to  make  that  opinion  the  judgment  of  the 
court.  “ The  opinion  was  written  by  Mr.  Justice  Davis,  and 
it  will  be  a perpetual  monument  to  his  honor.  It  laid  down 
in  clear  and  unmistakable  terms  the  doctrine  that  military 
commissions  organized  during  the  war,  in  a State  not  in- 
vaded nor  engaged  in  rebellion,  in  which  the  federal  courts 


were  open  and  in  the  undisturbed  exercise  of  their  judicial 
functions,  had  no  jurisdiction  to  try  a citizen,  who  was  not 
a resident  of  a State  in  rebellion,  nor  a prisoner  of  war, 
nor  a person  in  the  military  or  naval  service  ; and  that 
Congress  could  not  invest  them  with  any  such  power  ; and 
that  in  States  where  the  courts  were  thus  open  and  undis- 
turbed, the  guaranty  of  trial  by  jury  contained  in  the  Con- 
stitution was  intended  for  a state  of  war  as  well  as  a state 
of  peace,  and  is  equally  binding  upon  rulers  and  people 
at  all  times  and  under  all  circumstances.” 


The  Cummings  Case. 

“ At  the  same  term  with  the  Milligan  case  the  test-oath 
case  from  Missouri  was  brought  before  the  court  and  ar- 
gued. In  January,  1865,  a convention  had  assembled  in 
that  State  to  amend  its  constitution.  Its  members  had  been 
elected  in  November  previous.  In  April,  1865,  the  constitu- 
tion, as  revised  and  amended,  was  adopted  by  the  conven- 
tion, and  in  June  following  by  the  people.  Elected,  as  the 
members  were,  in  the  midst  of  the  war,  it  exhibited  through- 
out traces  of  the  animosities  which  the  war  had  engendered. 
By  its  provisions  the  most  stringent  and  searching  oath  as 
to  past  conduct  known  in  history  was  required,  not  only 
of  officers  under  it,  but  of  parties  holding  trusts  and  pursu- 
ing avocations  in  no  way  connected  with  the  administra- 
tion of  the  government.  The  oath,  divided  into  its  sep- 
arate parts,  contained  more  than  thirty  distinct  affirmations 
touching  past  conduct,  and  even  embraced  the  expression 
of  sympathies  and  desires.  Every  person  unable  to  take 
it  was  declared  incapable  of  holding  in  the  State  “ any 
office  of  honor,  trust,  or  profit  under  its  authority,  or  of 
being  an  officer,  councilman,  director  or  trustee,  or  other 
manager  of  any  corporation,  public  or  private,  now  exist- 
ing or  hereafter  established  by  its  authority,  or  of  acting 
as  a professor  or  teacher  in  any  educational  institution,  or 
in  any  common  or  other  school,  or  of  holding  any  real 


43 


estate  or  other  property  in  trust  for  the  use  of  any  church, 
religious  society,  or  congregation,  ” 

And  every  person  holding,  at  the  time  the  amended 
constitution  took  etfect,  any  of  the  offices,  trusts,  or  posi- 
tions mentioned,  was  required,  within  sixty  days  thereafter, 
to  take  the  oath  ; and,  if  he  failed  to  comply  with  this  re- 
quirement, it  was  declared  that  his  office,  trust,  or  position 
should  ipso  facto  become  vacant. 

No  person,  after  the  expiration  of  the  sixty  days,  was 
permitted,  without  taking  the  oath,  “to  practice  as  an 
attorney  or  counsellor-at-law,”  nor,  after  that  period  could 
“ any  person  be  competent  as  a bishop,  priest,  deacon, 
minister,  elder,  or  other  clergyman,  of  any  religious  per- 
suasion, sect,  or  denomination,  to  teach,  or  preach,  or  sol- 
emnize marriages.” 

Fine  and  imprisonment  were  prescribed  as  a punishment 
for  holding  or  exercising  any  of  “ the  offices,  positions, 
trusts,  professions,  or  functions  ” specified,  without  having 
taken  the  oath  ; and  false  swearing  or  affirmation  in  taking 
it  was  declared  to  be  perjury,  punishable  by  imprisonment 
in  the  penitentiary. 

Mr.  Cummings  of  Missouri,  a priest  of  the  Roman  Cath- 
olic Church,  was  indicted  and  convicted,  in  one  of  the  cir- 
cuit courts  of  that  State,  of  the  crime  of  teaching  and 
preaching  as  a priest  and  minister  of  that  religious  denom- 
ination without  having  first  taken  the  oath  thus  prescribed, 
and  was  sentenced  to  pay  a tine  of  five  hundred  dollars 
and  to  be  committed  to  jail  until  the  same  was  paid.  On 
appeal  to  the  Supreme  Court  of  the  State  the  judgment 
was  affirmed,  and  the  case  was  brought  on  a writ  of  error  to 
the  Supreme  Court  of  the  ITnitecl  States.  It  was  there  argued 
with  great  learning  and  ability  by  distinguished  counsel, 
consisting  of  Mr.  Montgomery  Blair,  of  Washington,  Mr. 
David  Dudley  Field,  of  New  York,  and  Mr.  Reverdy 
Johnson,  of  Maryland,  for  Mr.  Cummings  ; and  by  Mr. 
G.  P.  Strong  and  Mr.  John  B.  Henderson,  of  Missouri,  the 
latter  then  United  States  Senator,  for  the  State. 


44 


“ It  was  evident  that  the  power  asserted  by  the  State  of 
Missouri  to  exact  this  oath  for  past  conduct  from  parties, 
as  a condition  of  their  continuing  to  pursue  certain  pro- 
fessions, or  to  hold  certain  trusts,  mijfit,  if  sustained,  he 
often  exercised  in  times  of  excitement  to  the  oppression, 
if  not  ruin,  of  the  citizen.  For,  if  the  State  could  require 
the  oath  for  the  acts  mentioned,  it  might  require  it  for  any 
acts  of  one’s  past  life,  the  number  and  charactor  of  which 
would  depend  upon  the  mere  will  of  its  legislature.  It 
might  compel  one  to  affirm,  under  oath,  that  he  had  never 
violated  the  Ten  Commandments,  nor  exercised  his  politi- 
cal rights  except  in  conformity  with  the  views  of  the  ex- 
isting majority.  Indeed,  under  this  kind  of  legislation, 
the  most  flagrant  wrongs  might  be  committed  and  whole 
classes  of  people  deprived,  not  only  of  their  political,  hut 
of  their  civil  rights. 

“It  is  difficult  to  speak  of  the  whole  system  of  expurga- 
tory oaths  for  past  conduct  without  a shudder  at  the 
suffering  and  oppression  they  were  not  only  capable  of 
effecting  but  often  did  effect.  Such  oaths  have  never  been 
exacted  in  England,  nor  on  the  Continent  of  Europe. 
Test-oaths  there  have  always  been  limited  to  an  affirma- 
tion on  matters  of  present  belief,  or  as  to  present  dispo- 
sition towards  those  in  power.  It.  was  reserved  for  the 
ingenuity  of  legislators  in  our  country  during  the  civil 
war  to  make  test-oaths  reach  to  past  conduct. 

“ The  court  held  that  enactments  of  this  character,  op- 
erating, as  they  did,  to  deprive  parties,  by  legislative  de- 
cree, of  existing  rights  for  past  conduct,  without  the  for- 
mality and  the  safeguard  of  a judicial  trial,  fell  within  the 
inhibition  of  the  Constitution  against  the  passage  of  bills 
of  attainder.  In  depriving  parties  of  existing  rights  for 
past  conduct,  the  provisions  of  the  constitution  of  Missouri 
imposed,  in  effect,  a punishment  for  such  conduct.  Some 
of  the  acts  for  which  such  deprivation  was  imposed  were  not 
punishable  at  the  time  ; and  for  some  this  deprivation  was 
added  to  the  punishments  previously  prescribed,  and  thus 


they  fell  under  the  further  prohibition  of  the  Constitution 
against  the  passage  of  an  ex  post  facto  law.  The  decision 
of  the  court,  therefore,  was  for  the  discharge  of  the  Cath- 
olic priest.  The  judgment  against  him  was  reversed,  and 
the  Supreme  Court  of  Missouri  was  directed  to  order  the 
inferior  court  by  which  he  was  tried  to  set  him  at  liberty.” 

This  judgment  obtained  the  concurrence  of  only  five 
judges  against  four  of  them.  Judge  Field  was  one  of  the 
tire:  his  rote  teas  essentia!  to  that  judgment : and  he  wrote  the 
opinion  of  the  court. 

The  Garland  Case. 

Immediately  following  the  case  of  Cummings  that  of 
Ex-par  te  Garland  was  argued,  involving  the  validity  of  the 
iron-clad  oath,  as  it  was  termed,  prescribed  for  attorneys 
and  counsellors-at-law  by  the  act  of  Congress  of  January 
2-ith,  1865.  Mr.  A.  H.  Garland,  now  United  States  Sena- 
tor from  Arkansas,  had  been  a member  of  the  bar  of  the 
Supreme  Court  of  the  Uuited  States  before  the  civil  war. 
When  Arkansas  passed  her  ordinance  of  secession  and 
joined  the  Confederate  States,  he  went  with  her,  and  was 
one  of  her  representatives  in  the  Congress  of  the  Confed- 
eracy. In  July,  1865,  he  received  from  the  President  a 
full  pardon  for  all  offences  committed  by  his  participation, 
director  implied,  in  the  rebellion.  At  the  following  term 
of  the  court  he  produced  his  pardon,  and  asked  permission 
to  continue  to  practice  as  an  attorney  and  counsellor  with- 
out taking  the  oath  required  by  the  act  of  Congress,  and 
the  rule  of  the  court  made  in  conformity  with  it,  which 
he  was  unable  to  take  by  reason  of  the  offices  he  had  held 
under  the  Confederate  Government. 

The  application  was  argued  by  eminent  counsel,  con- 
sisting of  Mr.  Matthew  II.  Carpenter,  of  Wisconsin,  and 
Mr.  Reverdy  Johnson,  of  Maryland,  for  the  petitioner, 
Mr.  Garland,  and  Mr.  Marr,  another  applicant  for  admis- 
sion, who  had  participated  in  the  rebellion,  filing  written 
arguments  ; and  by  Mr.  Speed,  of  Kentucky,  and  Mr. 


-ft! 


Henry  Stanberv,  the  Attorney-General,  on  the  other  side. 
The  whole  subject  of  expurgatory  oaths  was  discussed, 
and  all  that  could  be  said  on  either  side  was  fully  and 
elaborately  presented. 

“The  court  in  its  decision  followed  the  reasoning  of  the 
Cummings  case  and  held  that  the  law  was  invalid,  as  applied 
to  the  exercise  of  the  petitioner’s  right  to  practice  his  pro- 
fession ; that  such  right  was  not  a mere  indulgence,  a matter 
of  grace  and  favor,  revocable  at  the  pleasure  of  the  court, 
or  at  the  command  of  the  legislature  ; but  was  a right  of 
which  the  petitioner  could  be  deprived  only  by  the  judg- 
ment of  the  court  for  moral  or  professional  delinquency. 
The  court  also  held  that  the  pardon  of  the  petitioner  re- 
leased him  from  all  penalties  and  disabilities  attached  to  the 
offence  of  treason  committed  by  bis  participation  in  the  re- 
bellion, and  that,  so  far  as  that  offence  was  concerned,  be 
was  placed  beyond  the  reach  of  punishment  of  any  kind. 
But  to  exclude  him  by  reason  of  that  offence — that  is,  by 
requiring  him  to  take  an  oath  that  be  had  never  com- 
mitted it — was  to  enforce  a punishment  for  it  notwith- 
standing the  pardon  ; and  that  it  was  not  within  the  con- 
stitutional power  of  Congress  thus  to  inflict  punishment 
beyond  the  reach  of  executive  clemency.” 

The  judgment  in  this  case  also  was  pronounced  by  five 
of'  the  judges  against  four  of  them.  Judge  Field  here  again 
was  one  of  the  Jive.  His  vote  ' was  essential  to  the  judgment ; 
and  he  wrote  the  opinion  of  the  court.* 

The  McArdle  Case. 

“ The  Reconstruction  Acts,  so-called — that  is,  ‘ An  act  to 
provide  for  the  more  efficient  government  of  the  rebel 

* In  the  decision  of  the  two  test-oath  cases — the  Cummings  case  and 
the  Garland  case — Justices  Wayne,  Nelson.  Grier,  Clifford,  and  Field  con- 
curred. Chief  Justice  Chase  and  Justices  Swayne,  Miller,  and  Davis  dis- 
sented. Afterwards  Chief  Justice  Chase  expressed  his  concurrence  in  the 
opinion  of  the  majority ; and  the  decision  was  followed  by  the  whole 
court,  with  the  exception  of  Mr.  Justice  Bradley,  in  the  case  of  Pierce 
vs.  Carskadon,  decided  at  the  December  term,  1872. — (16  Wallace,  234.) 


47 


States,’  of  March  2d,  1867,  and  an  act  of  the  23d  of  the 
same  month,  supplementary  to  the  former — were  violently 
attacked  in  Congress  when  before  it  for  consideration,  as 
invalid,  unconstitutional,  and  arbitrary  measures  of  the  gov- 
ernment ; and  as  soon  as  they  were  passed  various  steps 
were  taken  to  bring  them  to  the  test  of  judicial  examina- 
tion and  arrest  their  enforcement.  Those  acts  divided  the 
late  insurgent  States,  except  Tennessee,  into  live  military 
districts,  and  placed  them  under  military  control  to  be  ex- 
ercised until  constitutions,  containing  various  provisions 
stated,  were  adopted  and  approved  by  Congress,  and  the 
States  declared  to  be  entitled  to  representation  in  that  body. 
The  State  of  Georgia,  in  April  following  their  passage  filed 
a hill  in  the  Supreme  Court  invoking  the  exercise  of  its 
original  jurisdiction,  against  Stanton,  Secretary  of  War, 
Grant,  General  of  the  Army,  and  Pope,  Major-General, 
assigned  to  the  command  of  the  Third  Military  District, 
consisting  of  the  States  of  Georgia,  Florida,  and  Alabama; 
to  restrain  those  officers  from  carrying  into  effect  the  pro- 
visions of  the  acts.  The  bill  set  forth  the  existence  of  the 
State  of  Georgia  as  one  of  the  States  of  the  Union;  the 
civil  war  in  which  she,  with  other  States  forming  the 
Confederate  States,  had  been  engaged  with  the  government 
of  the  United  States;  the  surrender  of  the  Confederate 
armies  in  1865,  and  her  submission  afterwards  to  the  Con- 
stitution and  laws  of  the  Union  ; the  withdrawal  of  the 
military  government  from  Georgia  by  the  President  as 
Commander-in-Chief  of  the  army  of  the  United  States;  the 
re-organization  of  the  civil  government  of  the  State  under 
his  direction  and  with  his  sanction;  and  that  the  govern- 
ment thus  re-organized  was  in  full  possession  and  enjoy- 
ment of  all  the  rights  and  privileges,  executive,  legislative, 
and  judicial,  belonging  to  a State  in  the  Union  under  the 
Constitution,  with  the  exception  of  a representation  in  the 
Senate  and  House  of  Representatives.  The  bill  alleged 
that  the  acts  were  designed  to  overthrow  and  annul  the  ex- 
isting government  of  the  State,  and  to  erect  another  and  a 


48 


different  government  in  its  place,  unauthorized  by  the 
Constitution  and  in  defiance  of  its  guaranties  ; and  that 
the  defendants,  acting  under  orders  of  the  President,  were 
about  to  set  in  motion  a portion  of  the  army  to  take  mili- 
tary possession  of  the  State,  subvert  her  government,  and 
subject  her  people  to  military  rule.” 

The  court,  however,  dismissed  the  bill,  holding  that  it 
called  for  judgment  upon  a political  question. — (6  Wal- 
lace, 50.)  Other  attempts  were  made  to  obtain  the  judg- 
ment of  the  court  upon  the  legislation  in  question,  but  until 
the  McArdle  case,  they  failed  from  the  assumed  want  of 
jurisdiction  in  the  court  to  pass  upon  its  validity  as  the  ques- 
tion was  presented.  But  in  the  McArdle  case  the  validity  of 
that  legislation  came  up  in  such  a form  that  its  considera- 
tion could  not  be  avoided.  In  November,  1867,  McArdle 
had  been  arrested  and  held  in  custody  by  a military  com- 
mission organized  in  Mississippi  under  the  Reconstruction 
Acts,  for  trial  upon  charges  of  (1)  disturbing  the  public 
peace  ; (2)  inciting  to  insurrection,  disorder,  and  violence  ; 
(3)  libel  ; and  (4)  impeding  reconstruction.  He  there- 
upon applied  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  Mississippi  for  a writ  of  habeas  corpus , in  order 
that  he  might  be  discharged  from  his  alleged  illegal  im- 
prisonment. The  writ  was  accordingly  issued,  but  on  the 
return  of  the  officer  showing  the  authority  under  which  the 
petitioner  was  held,  he  was  ordered  to  be  remanded.  From 
that  judgment  he  appealed  to  tire  Supreme  Court.  Of 
course,  if  the  Reconstruction  Acts  were  invalid  the  peti- 
tioner could  not  be  held,  and  he  was  entitled  to  his  dis- 
charge. The  case  excited  great  interest  throughout  the 
country.  Judge  Sharkey  and  Robert  J.  Walker,  of  Mis- 
sissippi, David  Dudley  Field  and  Charles  O’Connor,  of  New 
York,  and  Jeremiah  S.  Black,  of  Pennsylvania,  appeared 
for  the  appellant ; and  Matthew  H.  Carpenter,  of  Wiscon- 
sin, Lyman  Trumbull,  of  Illinois,  and  ITenry  Stanbery,  the 
Attorney-General,  appeared  for  the  other  side.  The  case 


49 


was  thoroughly  argued,  as  any  one  must  know  from  the 
character  of  the  counsel. 

“ Seldom  has  the  court  listened  to  arguments  equal  in 
learning,  ability,  and  eloquence.  The  whole  subject  was 
exhausted.  As  the  arguments  were  widely  published  in 
the  public  journals,  and  read  throughout  the  country,  they 
produced  a profound  etfect.  The  impression  was  general 
that  the  Reconstruction  Acts  could  not  be  sustained  ; that 
they  were  revolutionary  and  destructive  of  a republican 
form  of  government  in  the  States,  which  the  Constitution 
required  the  federal  government  to  guarantee.  Of  course 
what  the  judgment  of  the  court  would  have  been  cannot 
be  known,  as  it  never  expressed  its  opinion.  The  argu- 
ment was  had  on  the  2d,  3d,  4th,  and  9th  of  March,  1868, 
and  it  was  expected  that  the  case  would  be  decided  in  reg- 
ular course  of  proceedings  when  it  was  reached  on  the  sec- 
ond subsequent  consultation  day,  the  21st.  In  the  mean- 
time an  act  was  quietly  introduced  into  the  House,  and 
passed,  repealing  so  much  of  the  law  of  February  5th,  1867, 
as  authorized  an  appeal  to  the  Supreme  Court  from  the 
judgment  of  the  Circuit  Court  on  writs  of  habe'as  corpus,  or 
the  exercise  of  jurisdiction  on  appeals  already  taken.  The 
President  vetoed  the  bill,  but  Congress  passed  it  over  his 
veto,  and  it  became  a law  on  the  27th  of  the  month.* 
'Whilst  it  was  pending  in  Congress  the  attention  of  the 
Judges  was  called  to  it,  and  in  consultation  on  the  21st 
they  postponed  the  decision  of  the  case  until  it  should  be 
disposed  of.  It  was  then  that  Mr.  Justice  Grier  wrote  the 
following  protest,  which  he  afterwards  read  in  court : ” 

In  ee  } Protest  of  Mr.  Justice  Grier. 

McArdle.  j 

This  case  was  fully  argued  in  the  beginning  of  this  month.  It  is  a 
case  that  involves  the  liberty  and  rights  not  only  of  the  appellant,  but  of 
millions  of  pur  fellow-citizens.  The  country  and  the  parties  had  a right  to 
expect  that  it  would  receive  the  immediate  and  solemn  attention  of  this 
court.  By  the  postponement  of  the  case  we  shall  subject  ourselves, 


4 


* 15  Stats,  at  Large,  44. 


whether  justly  or  unjustly,  to  the  imputation  that  we  have  evaded  the 
performance  of  a duty  imposed  on  ns  by  the  Constitution,  and  waited 
for  legislation  to  interpose  to  supersede  our  action  and  relieve  us  from 
our  responsibility.  I am  not  willing  to  be  a partaker  either  of  the  eulogy 
or  opprobrium  that  may  follow  ; and  can  only  say  : 

“ Pudet  lnec  opprobria  nobis, 

Et  dici  potuisse  ; et  non  potuisse  repelli.”* 

K.  C.  Grier. 

I am  of  the  same  opinion  with  my  brother  Grier,  and  unite  in  his  pro- 
test. Field,  .J. 

After  the  passage  of  the  repealing  act,  the  case  was  con- 
tinued ; and  at  the  ensuing  term  the  appeal  was  dismissed 
for  want  of  jurisdiction. — (7  Wall.,  506.)  No  further  di- 
rect attempt  was  ever  afterwards  made  to  obtain  the  judg- 
ment of  the  court  upon  the  constitutionality  of  the  Recon- 
struction Acts. 

Confiscation  Cases. 

On  the  17th  of  July,  1862,  the  President  approved  of 
the  act  of  Congress  commonly  known  as  the  Confiscation 
Act.  It  is  entitled  “ An  act  to  suppress  insurrection,  to 
punish  treason  and  rebellion,  to  seize  and  confiscate  the 
property  of  rebels,  and  for  other  purposes.”  Its  first  sec- 
tion prescribed  the  punishment  for  treason  thereafter  com- 
mitted. It  punished  it  with  death,  or,  in  the  discretion  of 
the  court,  with  imprisonment  for  not  less  than  five  years  and 
a fine  of  not  less  than  ten  thousand  dollars  ; and  it  provided 
that  the  slaves  of  the  party  adjudged  guilty,  if  any  he  had, 
should  be  declared  free.  The  second  section  provided  for 
the  punishment  of  the  offence  of  inciting,  setting  on  foot, 
or  engaging  in  any  rebellion  or  insurrection  against  the 
authority  of  the  United  States  or  the  laws  thereof,  or  en- 
gaging in  or  giving  aid  and  comfort  to  the  rebellion  or 
insurrection  then  existing.  The  third  section  declared 
that  parties  guilty  of  either  of  the  offences  thus  described 


*“  It  fills  us  with  shame  that  these  reproaches  can  be  uttered,  and  can- 
not be  repelled.”  The  words  are  found  in  Ovid’s  Metamorphoses,  Book 
I.,  lines  758-9.  In  some  editions  the  last  word  is  printed  refelli. 


.51 

should  be  forever  incapable  and  disqualified  to  hold  any 
office  under  the  United  States.  The  fourth  section  pro- 
vided that  the  act  should  not  affect  the  prosecution,  con- 
viction, or  punishment  of  persons  guilty  of  treason  before 
the  passage  of  the  act,  unless  such  persons  were  convicted 
under  the  act  itself.  The  fifth  section  declared  “ that  to 
insure  the  speedy  termination  ” of  the  rebellion,  it  should 
be  the  duty  of  the  President  to  cause  the  “ seizure  of  all 
the  estate  and  property,  money,  stocks,  credits,  and  effects  ” 
of  certain  persons  named  therein,  and  to  apply  and  use 
the  same  and  their  proceeds  for  the  support  of  the  army 
of  the  United  States.  Among  the  classes  named  were  in- 
cluded persons  who  might  thereafter  act  as  officers,  mili- 
tary or  civil,  under  the  Confederate  States,  or  hold  any 
agency  under  them,  or  any  of  the  States  composing  the 
Confederacy,  and  persons  owning  property  in  any  loyal 
State  or  Territory  of  the  United  States,  or  in  the  District  of 
Columbia,  who  should  thereafter  assist  and  give  aid  and 
comfort  to  the  rehellion.  The  sixth  section  declared  that 
if  any  person  within  any  State  or  Territory  of  the  United 
States,  other  than  those  aboved  named,  after  the  passage  of 
the  act,  being  engaged  in  armed  rebellion  against  the 
United  States,  or  in  aiding  or  abetting  such  rebellion, 
should  not,  within  sixty  days  after  public  warning  and 
proclamation  of  the  President,  cease  to  aid  and  abet  it, 
and  return  to  his  allegiance  to  the  United  States,  all  his 
“ estate  and  property,  moneys,  stocks  and  credits”  should 
be  liable  to  seizure  ; and  that  “ all  sales,  transfers,  or  con- 
veyances of  any  such  property  after  the  expiration  of  the 
said  sixty  days  ” should  be  “ null  and  void,”  and  that  it 
should  be  “ a sufficient  bar  to  any  suit  brought  by  such 
person  for  the  possession  or  the  use  of  such  property,  or  any 
of  it,  to  allege  and  prove  ” that  he  was  one  of  the  persons 
described  in  the  section. 

The  other  sections  of  the  act  prescribed  the  proceedings 
to  be  taken  for  the  condemnation  of  the  property  after  it 
had  been  seized  and  for  its  disposition  The  “ other  pur- 


52 

poses  ” mentioned  in  the  title  of  the  act  related  princi- 
pally to  slaves,  their  employment  or  colonization,  and  the 
power  of  the  President  to  proclaim  annesty  and  pardon. — - 
(12  Stats.,  590.) 

The  proclamation  of  the  President,  reference  to  which 
was  made  in  the  sixth  section,  was  issued  and  published 
on  the  25th  of  July  1862. — (12  Stats.,  1266.) 

Before  the  constitutionality  of  this  act  was  passed  upon 
by  the  Supreme  Court,  the  question  arose  as  to  the  import 
and  meaning  of  the  last  clause  of  the  sixth  section,  declaring 
“all  sales,  transfers,  and  conveyances”  of  property  by  per- 
sons not  heeding  the  warning  of  the  President  and  ceasing 
to  aid  the  rebellion,  to  he  null  and  void.  In  Corbett  vs. 
Xutt  (10  Wall., 479)  it  was  contended  that  a devise  to  one 
Mrs.  Hunter,  a resident  in  Virginia,  within  the  Confederate 
lines,  was  a transfer  within  the  meaning  of  the  act,  and  by 
its  provisions  was  invalid.  But  the  court  answered,  that 
assuming  that  a devise  was  included  within  “the  sales, 
transfers,  and  conveyances  ” invalidated  by  the  act,  such 
invalidity  could  only  be  asserted  by  the  United  States. 
The  act  contemplated  the  seizure  and  confiscation  of  the 
property  of  certain  persons  engaged  in  the  rebellion,  and 
authorized  the  institution  of  proceedings  for  that  purpose; 
and  Judge  Field,  speaking  for  the  court,  said  : 

“ It  was  to  prevent  these  provisions  from  being  evaded  by  the  parties 
whose  property  was  liable  to  seizure  that  ‘ sales,  transfers,  and  convey- 
ances ’ of  the  property  were  declared  invalid.  They  were  null  and  void  as 
against  the  belligerent  or  sovereign  right  of  the  United  States  to  appropri- 
ate and  use  the  property  for  the  purpose  designated,  but  in  no  other  re- 
spect, and  not  as  against  any  other  party.  Neither  the  object  sought,  nor 
the  language  of  the  act,  requires  any  greater  extension  of  the  terms  used. 
The  United  States  were  the  only  party  who  could  institute  the  proceed- 
ings for  condemnation ; the  offence  for  which  such  condemnation  was  de- 
creed was  against  the  United  States,  and  the  property  condemned,  or  its 
proceeds,  went  to  their  sole  use.  They  alone  could,  therefore,  be  affected 
by  the  sales. 

“ Any  other  construction  would  impute  to  the  United  States  a severity 
in  their  legislation  entirely  foreign  to  their  history.  No  people  can  exist 
without  exchanging  commodities.  There  must  be  buying  and  selling  and 


53 


exchanging  in  every  community,  or  the  greater  part  of  its  inhabitants 
would  have  neither  food  nor  raiment.  And  yet  the  argument  of  the  de- 
fendant, if  good  for  anything,  goes  to  this  extent,  that  by  the  act  of  Con- 
gress ‘all  sales,  transfers,  and  conveyances’  of  property  of  the  vast  num- 
bers engaged  in  the  late  rebellion  against  the  United  States,  constituting 
the  great  majority  of  many  towns  and  cities,  and  even  of  several  States, 
were  utterly  null  and  void  ; that  even  the  commonest  transactions  of  ex- 
change in  the  daily  life  of  these  people  were  tainted  with  invalidity.  It  is 
difficult  to  conceive  the  misery  which  would  follow  from  a legislative  de- 
cree of  this  wide-sweeping  character  in  any  community,  where  its  execu- 
tion was  conceived  to  be  possible,  or  confidence  was  reposed  in  its  valid- 
ity.”—(10  Wall.,  479-480.) 

In  the  case  of  Miller  vs.  United  States  (11  Wall.,  268) 
the  question  of  the  constitutionality  of  the  act  came  di- 
rectly before  the  court.  In  that  case  200  shares  of  stock  in 
the  Michigan  Southern  and  Northern  Indiana  Railroad 
Company,  and  343  shares  in  the  Detroit,  Monroe  and  Toledo 
Railroad  Co.,  the  property  of  one  Samuel  Miller,  a resi- 
dent of  Virginia,  was  seized  by  the  marshal  of  the  District 
of  Michigan  under  the  act,  and,  by  proceedings  in  the  Dis- 
trict Court  of  that  district,  were  condemned  as  forfeited 
to  the  United  States.  The  U.  S.  Circuit  Court  affirmed 
the  decision,  and  the  case  was  taken  to  the  Supreme  Court. 
Besides  various  objections  urged  to  the  decree,  for  irregular- 
ities in  the  alleged  seizure  and  proceedings,  the  unconstitu- 
tionality of  the  act  under  which  it  was  rendered  was  as- 
serted. The  court  met  this  question  directly,  and  affirmed 
the  validity  of  the  act,  holding  that,  while  so  much  of  it  as 
imposed  penalties  for  treason  was  passed  in  the  exercise 
of  the  municipal  power  of  Congress  to  legislate  for  the 
punishment  of  otfences  against  the  sovereignty  of  the 
United  States,  all  that  portion  which  provided  for  the  con- 
fiscation of  property  of  rebels  was  passed  in  the  exercise 
of  the  war  powers  of  the  government.  The  opinion  of  the 
court  was  delivered  by  Judge  Strong,  and  received  the 
concurrence,  on  this  point,  of  all  the  judges  present  at  the 
argument,  except  Judges  Clifford  and  Field.  Chief  Jus- 
tice Chase  was  absent  from  the  court  the  whole  term  on 
account  of  ill-health.  Judge  Nelson  was  engaged  on  the 


o4 


Joint  High  Commission  for  the  settlement,  by  treaty,  of 
questions  in  dispute  between  the  United  States  and  Great 
Britain.  Judges  Ojjiftbrd  and  Field  dissented,  Judge  Field 
giving  a dissenting  opinion.  They  did  not  deny  the  strict 
legal  right  of  the  government  to  confiscate  the  private 
property  of  enemies,  that  is,  of  permanent  inhabitants  of 
the  enemies’  country,  although  by  the  humane  policy  of 
modern  times  such  property,  unless  taken  in  the  field  or 
besieged  towns,  or  as  a military  contribution,  is  usually 
exempt  from  confiscation;  but  they  contended  that  the 
act  in  question  was  not  directed  against  enemies  as  such, 
but  against  persons  who  were  guilty  of  certain  alleged 
offences. 

After  stating  the  several  provisions  of  the  act,  Judge 
Field  said  as  follows  : 

“ It  would  seem  clear,  therefore,  that  the  provisions  of  the  act  were  not 
passed  in  the  exercise  of  the  war  powers  of  the  government,  but  in  the 
exercise  of  the  municipal  power  of  the  government  to  legislate  for  the 
punishment  of  offences  against  the  United  States.  It  is  the  property  of 
persons  guilty  of  certain  acts,  wherever  they  may  reside,  in  loyal  or  dis- 
loyal States,  which  the  statute  directs  to  be  seized  and  confiscated.  It  is 
also  for  acts  committed  after  the  passage  of  the  statute,  except  in  one 
particular,  corrected  by  the  joint  resolution  of  the  two  houses,  that  the 
forfeiture  is  to  be  declared.  If  it  had  been  the  intention  of  the  statute 
to  confiscate  the  property  of  enemies,  its  prospective  character  would 
have  been  entirely  unnecessary,  for  whenever  public  war  exists  the  right 
to  order  the  confiscation  of  enemies’  property,  according  to  Mr.  Chief 
Justice  Marshall,  exists  with  Congress. 

“ That  the  legislation  in  question  was  directed,  not  against  'enemies, 
but  against  persons  who  might  be.  guilty  of  certain  designated  public 
offences,  and  that  the  forfeiture  ordered  was  intended  as  a punishment 
for  the  offences,  is  made  further  evident  by  what  followed  the  passage  of 
the  act  of  Congress.  After  the  bill  was  sent  to  the  President  it  was  as- 
certained that  he  was  of  opinion  that  it  was  unconstitutional  in  some  of 
its  features,  and  that  he  intended  to  veto  it.  His  objections  were  that 
the  restriction  of  the  Constitution  concerning  forfeitures  not  extending 
beyond  the  life  of  the  offender  had  been  disregarded.  To  meet  this  objec- 
tion, which  had  been  communicated  to  members  of  the  House  of  Repre- 
sentatives, where  the  bill  originated,  a joint  resolution  explanatory  of  the 
act  was  passed  by  the  House  and  sent  to  the  Senate.  That  body,  being 
informed  of  the  objections  of  the  President,  concurred  in  the  joint  reso- 
lution. It  was  then  sent  to  the  President  and  was  received  by  him  be- 


00 


fore  the  expiration  of  the  ten  days  allowed  him  for  the  consideration  of 
the  original  bill.  He  returned  the  bill  and  resolution  together  to  the 
House,  where  they  originated,  with  a message,  in  which  he  stated 
that,  considering  the  act  and  the  resolution  explanatory  of  the  act  as 
being  substantially  one,  he  had  approved  and  signed  both.  That  joint 
resolution  declares  that  the  provisions  of  the  third  clause  of  the  fifth 
section  of  the  act  shall  be  so  construed  as  not  to  apply  to  any  act  or  acts 
done  prior  to  its  passage,  1 nor  shall  any  punishment  or  proceedings 
under  said  act  be  so  construed  as  to  work  a forfeiture  of  the  real  estate 
of  the  offender  beyond  his  natural  life.’ 

“ The  terms  here  used,  ‘ forfeiture  ’ of  the  estate  of  the  ‘ offender,’  have 
no  application  to  the  confiscation  of  enemies’  property  under  the  law  of 
nations.  They  are,  as  justly  observed  by  couusel,  strictly  and  exclusively 
applicable  to  punishment  for  crime.  It  was  to  meet  the  constitutional  re- 
quirement that  the  punishment  by  forfeiture  should  not  extend  beyond 
the  life  of  the  offender  that  the  joint  resolution  was  passed.  The  Presi- 
dent said  to  Congress,  the  act  is  penal,  and  does  not  conform  to  the  require- 
ment of  the  Constitution  in  the  extent  of  punishment  which  it  author- 
izes, and  I cannot,  therefore,  sign  it.  Congress  accepts  his  interpretation, 
and  by  its  joint  resolution  directs  a construction  of  the  act  in  accordance 
with  his  views.  And  this  construction,  thus  directed,  is  decisive,  as  it 
appears  to  me,  of  the  character  of  the  act.  Indeed  it  is  difficult  to  con- 
ceive of  any  reason  for  the  limitation  of  the  forfeiture  of  an  estate  to  the 
life  of  the  owner,  if  such  forfeiture  was  intended  to  apply  only  to  the 
property  of  public  enemies* 

“ The  inquiry,  then,  arises  whether  proceedings  in  rein  for  the  confis- 
cation of  the  property  of  parties  charged  to  be  guilty  of  certain  overt  acts 
of  treason,  can  be  maintained  without  their  previous  conviction  for  the 
alleged  offences.  Such  proceedings,  according  to  Mr.  Chief  Justice  Mar- 
shall, may  be  had  for  the  condemnation  of  enemies’  property  when  au- 
thorized by  Congress.  The  proceedings  in  such  cases  are  merely  to  authen- 
ticate the  fact,  upon  which,  under  the  law  of  nations,  the  confiscation  fol- 
lows. But  here  the  inquiry  is,  whether,  upon  the  assumption  that  a party 
is  guilty  of  a particular  public  offence,  his  property  may  be  seized,  and 
upon  proof  of  his  guilt,  or  its  assumption  upon  his  failure  to  appear  upon 
publication  of  citation,  condemnation  may  be  decreed.  The  inquiry  is 
prompted  from  the  supposed  analogy  of  these  cases  to  proceedings  in  rem 
for  the  confiscation  of  property  for  offences  against  the  revenue  laws,  or 
the  laws  for  the  suppression  of  the  slave-trade.  But  in  these  cases,  and 
in  all  eases  where  proceedings  in  rem  are  authorized  for  a disregard  of 
some  municipal  or  public  law,  the  offence  constituting  the  ground  of  con- 
demnation inheres,  as  it  were,  in  the  thing  itself.  The  thing  is  the  in- 
strument of  wrong,  and  is  forfeited  by  reason  of  the  unlawful  use  made 


* See  Bigelow  vs.  Forrest,  9 Wall.,  350,  and  McVeigh  vs.  United  States, 
11  Wallace,  259. 


of  it,  ov  the  unlawful  condition  in  which  it  is  placed.  And  generally  the 
thing,  thus  subject  to  seizure,  itself  furnishes  the  evidence  for  its  own 
condemnation.  Thus,  goods  found  smuggled,  not  having  been  subjected 
to  the  inspection  of  the  officers  of  the  customs,  or  paid  the  duties  levied  by 
law,  prove  of  themselves  nearly  all  that  is  desired  to  establish  the  right 
of  the  government  to  demand  their  confiscation.  A ship  entering  the 
mouth  of  a blockaded  port  furnishes  by  its  position  evidence  of  its  indention 
to  break  the  blockade,  and  the  decree  of  condemnation  follows.  A ship 
captured  whilst  engaged  in  the  slave-trade  furnishes, in  the  use  to  which  it 
was  subjected,  the  material  fact  to  be  established  for  its  forfeiture.  In  all 
these  cases  the  proceeding  is  against  the  offending  thing.  And  it  is  true 
that  in  these  cases  criminal  proceedings  will  also  lie  against  the  smuggler 
or  slave-trader,  if  arrested,  and  that  the  procedings in  remare  wholly  inde- 
pendent of,  and  unaffected  by,  the  criminal  proceedings  against  the  person. 
But  in  the  two  cases  the  proof  is  entirely  different.  In  the  one  case  there 
must  be  proof  that  the  thing  proceeded  against  was  subjected  to  some 
unlawful  use  or  was  found  in  some  unlawful  condition.  In  the  other  case 
the  personal  guilt  of  the  party  must  be  established,  and  when  condemna- 
tion is  founded  upon  such  guilt,  it  must  be  preceded  by  due  conviction 
of  the  offender,  according  to  the  forms  prescribed  by  the  Constitution. 
‘Confiscations  of  property,’ says  Mr.  Justice  Sprague  in  the  Amy  War- 
wick,* ' not  for  any  use  that  has  been  made  of  it,  which  go  not  against  an 
offending  thing,  but  are  inflicted  for  the  personal  delinquency  of  the 
owner  are  punitive,  and  punishment  should  be  inflicted  only  upon  due 
conviction  of  personal  guilt.’ 

“ If  we  examine  the  cases  found  in  the  reports,  where  proceedings  in 
rem  have  been  sustained,  we  shall  find  the  distinction  here  stated  con- 
stantly observed.  Indeed,  were  this  not  so,  and  proceedings  in  rem 
for  the  confiscation  of  property  could  be  sustained,  without  any  reference 
to  the  uses  to  which  the  property  is  applied,  or  the  condition  in  which  it  is 
found,  but  whilst,  so  to  speak,  it  is  innocent  and  passive,  and  removed 
at  a distance  from  the  owner  and  the  sphere  of  his  action,  on  the  ground 
of  the  personal  guilt  of  the  owner,  all  the  safeguards  provided  by  the  Con- 
stitution for  the  protection  of  the  citizen  against  punishment,  without  pre- 
vious trial  and  conviction,  and  after  being  confronted  by  the  witnesses 
against  him,  would  be  broken  down  and  swept  away.” — (11  Wall.,  319- 
323.) 

The  court  having  adjudged  that  the  statute,  in  author- 
izing suits  in  rem  for  the  confiscation  of  the  property  of 
persons  alleged  to  have  been  guilty  of  certain  overt  acts 
of  treason,  was  valid,  proceedings  under  it  were  sustained, 
which,  though  taken  ostensibly  in  the  interest  of  the 
United  States,  were  in  many  instances  prosecuted  for  the 

* Sprague’s  Decisions,  2nd  vol.,  150. 


benefit  of  parties  connected  with  the  court  in  which  they 
were  had,  or  their  immediate  relatives  or  friends.  A de- 
plorable instance  of  the  kind  is  stated  in  the  opinion  of 
the  Court  of  Appeals  in  Virginia,  in  the  case  of  Under- 
wood vs.  McVeigh. — (23  Grattan,  409.)  There  the  dis- 
trict judge  ordered  the  appearance  of  the  owner  of  the 
property  seized,  and  his  answer  and  claim  to  be  stricken 
from  the  files  of  the  court,  because  lie  was  in  the  position 
of  an  alien  enemy;  and  thereupon  adjudged  that  the  prop- 
erty be  confiscated  and  forfeited  to  the  United  States. 
At  the  sale  under  the  decree  thus  rendered,  the  wife  of 
the  judge  became  the  purchaser  of  the  property  at  a price 
greatly  below  its  value.  Some  evidence  of  the  abuses 
practiced  under  the  statute  will  also  be  found  in  the  opinion 
of  the  Supreme  Court  in  McVeigh  vs.  Windsor  (11  Wall., 
259) ; Osborn  vs.  United  States  (91  U.  S.,475) ; and  Wind- 
sor vs.  McVeigh  (93  U.  S.,274). 

The  owners  of  the  property  seized  did  not  often  appear  in 
the  suits,  usually  not  having  information  of  the  proceedings 
until  after  a decree  of  condemnation  had  passed,  and  the 
property  had  been  sold.  Persons  immediately  connected 
with  the  court,  where  these  suits  were  prosecuted,  were  in  a 
position  to  take  great  advantage  of  the  government,  and 
that  they  availed  themselves  of  the  opportunity,  the  rec- 
ords of  the  courts  abundantly  show.  A distinguished 
member  of  the  profession  at  the  South,  formerly  on  the 
Supreme  Bench  (Judge  Campbell),  who  had  occasion  to 
look  a good  deal  into  these  proceedings,  has  stated  that 
the  statute  as  a financial  expedient  was  abortive,  only  about 
$150,000  having  been  realized  from  the  confiscation  de- 
crees of  the  courts,  and  most  of  that  sum  after  the  war 
had  nearly  or  quite  ended.  And  he  thinks  that  President 
Lincoln,  in  insisting  upon  the  explanatory  resolution  be- 
fore signing  the  act,  must  have  agreed  with  one  of  the 
greatest  of  statesmen,  “ that  speculative  plunder/contin- 
gent spoil,  future,  long-adjourned,  uncertain  booty,  pillage 
to  supply  troops  and  sustain  armies,  would  not  serve  to 


58 


maintain  even  a mercenary  war  ; ” and  have  regarded  the 
act — comprehending  as  it  did  in  its  scope  nine-tenths  of 
the  property  and  white  persons  within  the  limits  of  the 
Confederate  States — as  a mere  brutumf  oilmen,  which,  if  not 
available  as  such,  it  was  not  worthy  an  enlightened  and 
civilized  people  to  enforce  in  spirit  or  detail. 

In  Conrad  vs.  Wades  (96  U.  S.,  279)  the  court  held 
that  the  act,  in  its  provisions  for  the  confiscation  of  prop- 
erty, applied  only  to  the  property  of  persons  who  there- 
after might  be  guilty  of  acts  of  disloyalty  and  treason  ; 
that  sales  "and  conveyances  between  enemies  of  real 
property  in  the  enemies’  country  passed  the  title,  sub- 
ject only  to  be  defeated  if  the  government  should  after- 
wards proceed  for  its  condemnation  ; and  that  the  pro- 
vision of  the  act  declaring  all  transfers  of  property  try 
enemies  null  and  void  only  invalidated  the  transactions 
as  against  the  right  of  the  United  States  to  claim  the  for- 
feiture of  the  property,  affirming  in  this  respect  the  de- 
cision in  Corbett  vs.  Xutt,  cited  above.  In  giving  its 
opinion  Judge  Field  said  : 

“A  different  doctrine  would  unsettle  a multitude  of  titles  passed  dur- 
ing the  war  between  residents  of  the  insurrectionary  territory,  tempo- 
rarily absent  therefrom  whilst  it  was  dominated  by  the  federal  forces. 
Such  residents  were  deemed  enemies  by  the  mere  fact  of  being  inhab- 
itants of  that  territory,  without  reference  to  any  hostile  disposition  man- 
ifested or  hostile  acts  committed  by  them.  In  numerous  instances,  also, 
transfers  of  property  were  made  in  loyal  States,  bordering  on  the  line  of 
actual  hostilities,  by  parties  who  had  left  those  States  and  joined  the  in- 
surgents. This  was  particularly  the  case  in  Missouri  and  Kentucky.  No 
principle  of  public  policy  would  be  advanced,  or  principle  of  public  law 
sustained,  by  holding  such  transfers  absolutely  void,  instead  of  being 
merely  inoperative  as  against  the  right  of  the  United  States  to  appropri- 
ate the  property  jure  belli:  on  the  contrary,  such  a holding  would  create 
unnecessary  hardship,  and  therefore  add  a new  cruelty  to  the  war.” 

In  Burbank  vs.  Conrad  (96  U.  S.,  291)  the  court  held 
that  by  the  decree  of  condemnation  under  the  act,  the 
United  States  acquired  only  the  life-estate  of  the  alleged 
offender,  actually  possessed  by  him  at  the  time  of  its  seizure, 
not  the  estate  which  the  records  in  the  register’s  office  may 
have  shown  to  be  in  him.  Accordingly  a previous  sale 


59 


was  not  affected,  although  not  recorded.  On  this  point 
Judge  Field,  in  speaking  for  the  court,  said  : 

“The  object  of  requiring  a public  record  of  instruments  affecting  the 
title  to  real  property  is  to  protect  third  parties  dealing  with  the  vendor, 
by  imparting  notice  to  them  of  any  previous  sale  or  hypothecation  of  the 
property,  and  to  protect  the  purchaser  against  any  subsequent  attempted 
disposition  of  it.  In  Louisiana  the  conveyance  is  valid  between  the  par- 
ties without  registration  and  passes  the  title.  The  only  consequence  of  a 
failure  of  the  purchaser  to  place  his  conveyance  on  the  records  of  the  par- 
ish where  the  property  is  situated,  is  that  he  is  thereby  subjected  to  the 
risk  of  losing  the  property  if  it  be  again  sold  or  hypothecated  by  his 
vendor  to  an  innocent  third  party  ; or  if  it  be  seized  and  sold  by  a cred- 
itor of  his  vendor  for  the  latter’s  debts.  The  second  purchaser  from  the 
vendor  and  the  bidder  at  the  judicial  sale  would  in  that  ease  hold  the 
property.  The  United  States  never  stood  in  the  position  of  a second  pur- 
chaser of  the  property  sold  by  the  elder  Conrad.  They  were  not  pur- 
chasers at  any  sale  of  his  property.  They  had  caused  his  estate  in  the 
land,  whatever  that  was,  to  be  seized  and  condemned.  By  the  decree  of 
condemnation  that  estate  vested  in  them  for  the  period  of  his  life.  His 
estate  for  that  period  was  then  their  property.  The  statute  declares  that 
the  property  condemned  1 shall  become  the  property  of  the  United  States, 
and  may  be  disposed  of  as  the  court  shall  decree,’  It  was  the  property 
of  the  United  States,  therefore,  which  was  sold  and  conveyed  at  the  mar- 
shal's sale.  The  United  States  acquired  by  the  decree,  for  the  life  of  the 
offender,  only  the  estate  which  at  the  time  of  the  seizure  he  actually 
possessed  ; not  what  he  may  have  appeared  from  the  public  records  to 
possess,  by  reason  of  the  omission  of  his  vendees  to  record  the  act  of  sale 
to  them  ; and  that  estate,  whatever  it  was,  for  that  period  passed  by  the 
marshal’s  sale  and  deed ; nothing  more  and  nothing  less.  The  registry 
act  was  not  intended  to  protect  the  United  States  in  the  exercise  of  their 
power  of  confiscation  from  the  consequences  of  previous  unrecorded  sales 
of  the  alleged  offender.  It  was  in  the.  power  of  Congress  to  provide  for 
the  confiscation  of  the  entire  property,  as  being  within  the  enemy’s  coun- 
try, without  limiting  it  to  the  estate  remaining  in  the  offender ; but  not 
having  done  so,  the  court  cannot  enlarge  the  operation  of  the  stringent 
provisions  of  the  statute.  The  plaintiff  had  notice  of  the  character  and 
legal  effect  of  the  decree  of  condemnation  when  he  purchased,  and  is 
therefore  presumed  to  have  known  that  if  the  alleged  offender  possessed 
no  estate  in  the  premises  at  the  time  of  their  seizure,  nothing  passed  to 
the  United  States  by  the  decree,  or  to  him  by  his  purchase.” 

Cases  on  Pardon  and  Amnesty. 

In  his  great  speech  on  conciliation  with  America,  Burke 
observed,  what  all  must  admit  to  he  true,  “ that  there  is  a 


60 


wide  difference  in  reason  and  policy  between  the  mode  of 
proceeding  on  the  irregular  conduct  of  scattered  indi- 
viduals, or  even  of  bands  of  men  who  disturb  order  within 
the  State,  and  the  civil  dissensions  which  may,  from  time 
to  time,  on  great  questions,  agitate  the  several  communities 
which  compose  a great  empire;”  and  said  that  it  looked  to 
him  to  be  narrow  and  pedantic  to  apply  the  ordinary  ideas 
of  criminal  justice  to  the  great  public  contest  then  going 
on  in  America  ; and  that  he  did  not  know  the  method  of 
drawing  up  an  indictment  against  a whole  people. 

This  language  must  have  occurred  to  the  belligerents  in 
the  late  civil  war.  And  yet  the  Constitution  declares  that 
“treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.”  The  people  of  the  Con- 
federate States,  in  making  war  against  the  United  States, 
came  within  the  terms  of  this  definition,  however  unwise 
and  monstrous  the  proposition,  that  under  it  they  were  all 
exposed  to  criminal  prosecution.  The  attempt  to  pass 
sentence  upon  them  as  a people  would,  as  Burke  said,  be 
a proceeding  “ for  wise  men,  not  judicious;  for  sober  men, 
not  decent;  for  minds  tinctured  with  humanity,  not  mild 
and  merciful.”  But  under  the  legislation  of  Congress  and 
of  several  of  the  States,  it  was  of  the  highest  moment  to 
many  of  these  people,  that  they  should  be  relieved  from 
the  disabilities  to  which  their  participation  in  the  rebellion 
subjected  them  ; and  that  could  only  be  accomplished, 
whilst  that  legislation  remained  in  force,  by  pardon  or 
amnesty.  The  term  amnesty  is  not  found  in  the  Constitu- 
tion, but  is  generally  used  to  denote  the  clemency  ex- 
tended to  a whole  community  or  to  a class  of  persons. 
Pardon  is  the  generic  term  and  includes  every  species  of 
executive  clemency,  individual  or  general,  conditional  or 
absolute. 

The  first  case  after  the  war,  in  which  the  Supreme  Court 
had  occasion  to  speak  of  the  effect  and  operation  of  a 
pardon,  was  that  of  Garland,  who  was  precluded,  as  stated 


61 


above,  from  continuing  the  practice  of  his  profession  as  an 
attorney  and  counsellor-at-law  in  the  Supreme  Court,  by 
bis  inability  to  take  the  oath  required  by  the  act  of  Con- 
gress, that  he  had  never  participated  in  the  rebellion  or 
given  it  aid  and  comfort.  Judge  Field,  speaking  in  that 
case  for  the  court,  said  : 

“ The  Constitution  provides  that  the  President  1 shall  have  power  to 
grant  reprieves  and  pardons  l'or  offences  against  the  United  States,  except 
in  cases  of  impeachment.’ 

“The  power  thus  conferred  is  unlimited,  with  the  exception  stated. 
It  extends  to  every  offence  known  to  the  law,  and  may  be  exercised  at 
any  time  after  its  commission,  either  before  legal  proceedings  are  taken 
or  during  their  pendency,  or  after  conviction  and  judgment.  This  power 
of  the  President  is  not  subject  to  legislative  control.  Congress  can  nei- 
ther limit  the  effect  of  his  pardon  nor  exclude  from  its  exercise  any  class 
of  offenders.  The  benign  prerogative  of  mercy  reposed  in  him  cannot  be 
fettered  by  any- legislative  restrictions. 

“Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and  operation 
of  a pardon,  and  on  this  point  all  the  authorities  concur.  A pardon 
reaches  both  the  punishment  prescribed  for  the  offence  and  the  guilt  of 
the  offender ; and  when  the  pardon  is  full,  it  releases  the  punishment  and 
blots  out  of  existence  the  guilt,  so  that  in  the  eye  of  the  law  the  offender 
is  as  innocent  as  if  he  had  never  committed  the  offence.  If  granted  be- 
fore conviction,  it  prevents  any  of  the  penalties  and  disabilities  conse- 
quent upon  conviction  from  attaching ; if  granted  after  conviction,  it  re- 
moves the  penalties  and  disabilities,  and  restores  him  to  all  his  civil 
rights  ; it  makes  him,  as  it  were,  a new  man,  and  gives  him  a new  credit 
and  capacity. 

“ There  is  only  this  limitation  to  its  operation : it  does  not  restore  of- 
fices forfeited,  or  property  or  interests  vested  in  others  in  consequence  of 
the  conviction  and  judgment. 

“ The  pardon  produced  by  the  petitioner  is  a full  pardon  ‘ for  all  of- 
fences by  him  committed,  arising  from  participation,  direct  or  implied, 
in  the  rebellion,’  and  is  subject  to  certain  conditions  which  have  been 
complied  with.  The  effect  of  this  pardon  is  to  relieve  the  petitioner 
from  all  penalties  and  disabilities  attached  to  the  offence  of  treason, 
committed  by  his  participation  in  the  rebellion.  So  far  as  that  offence  is 
concerned,  he  is  thus  placed  beyond  the  reach  of  punishment  of  any  kind.” 
—(4  Wall.,  380-381.) 

In  several  cases  subsequently  before  the  court,  on  ap- 
peal from  tlie  Court  of  Claims,  which  were  brought  for 
the  recovery  of  the  proceeds  of  cotton  seized  hjr  officers 
of  the  United  States  under  the  captured  and  abandoned 


property  act  of  March  12th,  1863,  the  doctrine  of  the 
Garland  case  was  followed  and  applied,  so  as  to  relieve 
the  petitioners  from  the  necessity  of  showing  that  they 
had  never  given  any  aid  or  comfort  to  the  rebellion,  which 
otherwise  would  have  been  required  under  the  act. 

In  Paddleford’s  case,  (9  Wall.,  531,)  the  petitioner  hav- 
ing taken  the  oath  of  allegiance  prescribed  by  the  procla- 
mation of  President  Lincoln,  of  December  8th,  1863,  and 
kept  it  inviolate,  it  was  held,  that  he  was  entitled  to  claim 
the  proceeds  of  cotton  subsequently  seized  and  sold  under 
that  act.  The  court  cited  the  language  in  the  Garland 
case  as  to  the  effect  of  a pardon,  that  by  it  “ in  the  eye  of 
the  law  the  offender  is  as  innocent  as  if  he  had  never  com- 
mitted the  offence.”  The  pardon  had  purged  him  of  the 
offence  when  the  seizure  was  made.  In  the  words  of  the 
Chief  Justice,  who  gave  the  opinion  of  the  court,  “ the 
law  made  the  grant  of  pardon  a complete  substitute  for 
proof  that  he  gave  no  aid  or  comfort  to  the  rebellion.” 

In  Klein’s  case,  (13  Wall.,  129,)  subsequently  before 
the  court,  an  act  of  Congress,  which  undertook  to  do  away 
with  this  effect  and  operation  of  a pardon,  was  brought  to 
its  notice.  That  act  declared  that  a pardon  should  not  su- 
persede the  necessity  of  proof  of  loyalty  by  its  recipient, 
but  that  its  acceptance,  without  an  express  disclaimer  and 
protestation,  should  be  conclusive  evidence  of  his  guilt  of 
the  acts  pardoned,  and  he  inoperative  as  evidence  of  the 
rights  which  the  court  had  adjudged  were  conferred  by 
it.  The  court,  to  its  great  honor,  held  the  act  to  he  uncon- 
stitutional— an  attempt  to  prescribe  to  the  judiciary  the 
effect  to  be  given  to  the  previous  pardon  of  the  President. 
The  Chief  Justice,  in  giving  its  opinion,  said:  “It  is  clear 
that  the  legislature  cannot  change  the  etfect  of  such  a 
pardon  any  more  than  the  executive  can  change  a law. 
Yet  this  is  attempted  by  the  provision  under  consideration. 
The  court  is  required  to  receive  special  pardons  as  evi- 
dence of  guilt  and  to  treat  them  as  null  and  void.  It  is 
required  to  disregard  pardons  granted  by  proclamation  on 


condition,  though  the  condition  has  been  fulfilled,  and  to 
deny  them  their  legal  effect.  This  certainly  impairs  the 
executive  authority,  and  directs  the  court  to  he  instru- 
mental to  that  end.” 

In  Mrs.  Armstrong’s  case,  (13  Wall.,  154,)  which  was 
heard  after  the  decision  in  Klein’s  case,  the  court  declined 
to  consider  whether  the  evidence  was  sufficient  to  prove 
that  the  claimant  had  given  aid  and  comfort  to  the  rebel- 
lion, and  held  that  the  proclamation  of  pardon  and  am- 
nesty issued  by  the  President  entitled  her  to  the  proceeds 
of  her  captured  and  abandoned  property  in  the  Treasury, 
without  proof  that  she  never  gave  such  aid  and  comfort. 
The  Chief  Justice,  in  delivering  the  opinion  of  the  court, 
observed  that  the  proclamation  granting  pardon,  uncon- 
ditionally and  without  reservation,  “ was  a public  act  of 
which  all  courts  of'the  United  States  are  bound  to  take 
notice,  and  to  which  all  courts  are  hound  to  give  effect.” 

Subsequently,  at  the  December  term,  1872,  in  Carlisle 
vs.  The  United  States,  the  question  again  arose  as  to  the 
effect  of  the  proclamation  of  pardon  and  amnesty  made 
by  the  President,  December  25th,  1868,  upon  the  rights  of 
parties  who  had  given  aid  and  comfort  to  the  rebellion, 
and  were  claiming  the  proceeds  of  cotton  seized  by  the 
officers  of  the  United  States  and  turned  over  to  the  agents 
of  the  Treasury  Department;  and  the  court  said,  speaking 
through  Judge  Field  : 

“Assuming  that  they  [the  claimants]  are  within  the  terms  of  the 
proclamation,  the  pardon  and  amnesty  granted  relieve  them  from  the 
legal  consequences  of  their  participation  in  the  rebellion,  and  from  the 
necessity  of  proving  that  they  had  not  thus  participated,  which  other- 
wise would  have  been  indispensable  to  a recovery.  It  is  true,  the  pardon 
and  amnesty  do  not  and  cannot  alter  the  fact  that  aid  and  comfort  were 
given  by  the  claimants,  but  they  forever  close  the  eyes  of  the  court  to  the  per- 
ception of  that  fact  as  an  element  in  its  judgment,  no  rights  of  third  parties 
having  intervened.” 

In  Osborn  vs.  The  United  States,  decided  at  the  Octo- 
ber term,  1875,  (91  U.  S.,  474,)  the  question  was  as 
to  the  effect  of  the  President’s  pardon  upon  the  rights 


of  the  petitioner  to  the  proceeds  of  his  property  confis- 
cated by  the  decree  of  the  District  Court.  The  Circuit 
Court  — Judge  Miller  presiding  — was  of  opinion  that, 
subject  to  the  exceptions  specified  therein,  the  pardon 
restored  all  rights  of  property  lost  by  the  often ce  pardoned, 
unless  the  property  had  by  judicial  process  become  vested 
in  other  persons;  and  that  the  proceeds  of  property  con- 
fiscated, paid  into  court,  were  under  its  control  until  an 
order  for  their  distribution  was  made,  or  they  were  paid 
into  the  hands  of  the  informer  entitled  to  receive  them,  or 
into  the  Treasury  of  the  United  States;  and  that  until  then 
no  vested  right  to  the  proceeds  had  accrued  so  as  to  pre- 
vent the  pardon  from  restoring  them  to  the  petitioner.  This 
ruling  was  assailed  by  officers  of  the  District  Court,  who 
were  called  upon  to  make  restitution  of  a portion  of  the 
proceeds  they  had  obtained.  But  the  Supreme  Court,  in 
affirming  it,  speaking  through  Judge  Field,  replied  as 
follows  : 

“ It  is  not  a matter  for  these  officers  to  complain  that  proceeds  of  prop- 
erty adjudged  forfeited  to  the  United  States  are  held  subject  to  the  further 
disposition  of  the  court,  and  possible  restitution  to  the  original  owner. 
That  is  a matter  which  concerns  only  the  United  States,  and  they  have 
not  seen  fit  to  object  to  the  decision.  But  independently  of  this  con- 
sideration we  are  clear  that  the  decision  was  correct.  The  pardon,  as  is 
seen,  embraces  all  offences  arising  from  participation  of  the  petitioner, 
direct  or  indirect,  in  the  rebellion.  It  covers,  therefore,  the  offences  for 
which  the  forfeiture  of  his  property  was  decreed.  The  confiscation  law 
of  1862,  though  construed  to  apply  only  to  public  enemies,  is  limited  to 
such  of  them  as  were  engaged  in  and  gave  aid  and  comfort  to  the  rebel- 
lion. The  pardon  of  that  offence  necessarily  carried  with  it  the  release 
of  the  penalty  attached  to  its  commission,  so  far  as  such  release  was  in 
the  power  of  the  government,  unless  specially  restrained  by  exceptions 
embraced  in  the  instrument  itself.  It  is  of  the  very  essence  of  a pardon 
that  it  releases  the  offender  from  the  consequences  of  his  offence.  If  in 
the  proceedings  to  establish  his  culpability  and  enforce  the  penalty,  and 
before  the  grant  of  the  pardon,  the  rights  of  others  than  the  government 
have  vested,  those  rights  cannot  be  impaired  by  the  pardon.  The  gov- 
ernment having  parted  with  its  power  over  such  rights,  they  necessarily 
remain  as  they  existed  previously  to  the  grant  of  the  pardon.  The  gov- 
ernment can  only  release  what  it  holds.  But  unless  rights  of  others  in 
the  property  condemned  have  accrued,  the  penalty  of  forfeiture  annexed 


65 

to  the  commission  of  the  otfence  must  fall  with  the  pardon  of  the  offence 
itself,  provided  the  full  operation  of  the  pardon  be  not  restrained  by  the 
conditions  upon  which  it  is  granted.” 

In  Emote  vs.  United  States,  (95  U.  S.,  154,)  heard  at 
the  October  term,  1877,  the  question  was  whether  the 
pardon  and  amnesty  granted  by  the  President’s  procla- 
mation entitled  one,  who  had  received  its  benefits,  to  the 
proceeds  of  his  property  previously  condemned  and  sold 
under  the  confiscation  act,  after  such  proceeds  had  been 
paid  into  the  Treasury.  And  upon  this  subject,  Judge 
Field,  speaking  for  the  court,  said  : 

“ Moneys  once  in  the  Treasury  can  only  be  withdrawn  by  an  appropri- 
ation by  law.  However  large,  therefore,  may  be  the  power  of  pardon 
possessed  by  the  President,  and  however  extended  may  be  its  application, 
there  is  this  limit  to  it,  as  there  is  to  all  his  powers  : it  cannot  touch 
moneys  in  the  Treasury  of  the  United  States,  except  expressly  authorized 
by  act  of  Congress.  The  Constitution  places  this  restriction  upon  the 
pardoning  power. 

“ Where,  however,  property  condemned,  or  its  proceeds,  have  not  thus 
vested,  but  remain  under  control  of  the  executive  or  of  officers  subject  to 
his  orders,  or  are  in  the  custody  of  the  j udicial  tribunals,  the  property  will 
be  restored  or  its  proceeds  delivered  to  the  original  owner  upon  his  full 
pardon.  The  property  and  the  proceeds  are  not  considered  as  so  absolutely 
vesting  in  third  parties  or  in  the  United  States  as  to  be  unaffected  by  the 
pardon  until  they  have  passed  out  of  the  jurisdiction  of  the  officer  or 
tribunal.  The  proceeds  have  thus  passed  when  paid  over  to  the  indi- 
vidual entitled  to  them,  in  the  one  case,  or  are  covered  into  the  Treasury, 
in  the  other.” 

Legal-Tender  Cases  and  Confederate  Uotes. 

Xext  to  the  questions  relating  to  reconstruction,  test-oaths, 
pardon,  and  amnesty,  those  relating  to  the  notes  issued  by 
the  government  to  he  used  as  a circulating  medium,  excited, 
after  the  war,  the  greatest  interest.  On  the  25th  of  Feb- 
ruary, 1862,  the  President  approved  of  an  act  of  Congress 
entitled  “An  act  to  authorize  the  issue  of  United  States 
notes,  and  for  the  redemption  or  funding  thereof,  and  for 
funding  the  floating  debt  of  the  United  States,”  commonly 
known  as  the  legal-tender  act. — (12  Stats.,  345.) 


o 


t>6 


It  authorized  the  Secretary  of  the  Treasury  to  issue  notes 
on  the  credit  of  the  United  States  to  the  amount  of  one 
hundred  and  fifty  millions,  not  drawing  interest,  payable 
to  hearer,  of  such  denominations  as  he  might  deem  expe- 
dient, not  less  than  five  dollars  each.  And  it  declared 
that  such  notes  should  be  “ receivable  in  payment  of  all 
taxes,  internal  duties,  excises,  debts,  and  demands  of  every 
kind  due  to  the  United  States,  except  duties  on  imports, 
and  of  all  claims  and  demands  against  the  United  States 
of  every  kind  whatsoever,  except  for  interest  upon  bonds 
and  notes,”  which  was  to  be  paid  in  coin,  and  he  “ lawful 
money  and  a legal  tender  in  payment  of  all  debts,  public 
and  private,  within  the  United  States,  except  duties  on  im- 
ports and  interest  as  aforesaid.” 

No  serious  question  was  ever  raised  as  to  the  power  of 
the  government  to  issue  the  notes  as  a means  of  borrow- 
ing money,  or  to  make  them  payable  to  hearer,  and  of 
such  denominations  as  would  suit  the  convenience  of  the 
lender,  or  to  make  them  receivable  for  dues  to  the  United 
States.  The  only  objection  to  the  act  was  the  provision 
making  them  “ a legal  tender  in  payment  of  all  debts  pub- 
lic and  private,”  so  far  as  it  applied  to  private  debts  and 
debts  owing  by  the  United  States. 

As  Congress  could  only  exercise  such  powers  as  were 
expressly  delegated  to  it,  or  were  necessary  and  proper  to 
the  execution  of  those  powers,  and  as  it  was  not  expressly 
invested  with  control  over  the  subject  of  legal  tender,  and 
the  States  were  prohibited  in  terms  from  making  anything 
but  gold  and  silver  such  tender,  the  validity  of  the  pro- 
vision, so  far  as  it  applied  to  private  debts,  was  at  once 
raised.  The  question  was  one  of  immediate  and  pressing 
importance,  not  only  from  the  fact  that  the  amount 
authorized  by  the  act  mentioned  was  issued,  but  by  sub- 
sequent acts,  containing  a similar  provision,  the  issue  of  a 
much  larger  amount  was  authorized,  and  in  denominations 
as  low  as  one  dollar.  These  notes,  not  being  convertible 
on  demand  into  coin,  soon  depreciated  in  value  in  the 


market,  so  at  times  during  the  war  they  were  fifty  cents 
below  par,  and  long  after  the  war  their  purchasable  power 
was  greatly  less  than  their  nominal  amount.  Unscrupu- 
lous debtors  at  once  seized  the  occasion  to  discharge  their 
previous  obligations  by  these  notes,  thus  paying  their 
creditors  nominally  the  whole,  but  in  fact  only  a portion, 
of  their  dues.  The  great  corporations  of  the  country, 
which  had  contracted  a large  indebtedness  prior  to  the 
war,  did  not  hesitate  to  offer  to  their  creditors  these  notes, 
both  for  the  interest  and  principal  of  their  bonds.  They 
measured  their  sense  of  justice,  not  by  the  rules  of  com- 
mon honesty,  but  by  what  the  law  permitted. 

In  the  case  of  Lane  County  vs.  Oregon  (7  Wall.,  72)  an 
attempt  was  made  to  compel  the  officials  of  that  State  to 
receive  these  notes  for  taxes  in  the  face  of  legislation  re- 
quiring such  taxes  to  be  paid  in  gold  and  silver.  But  the 
Supreme  Court  held  that  taxes  were  not  debts  within  the 
meaning  of  the  legal-tender  act,  and  that  by  the  term 
debts  were  meant  only  such  obligations  for  the  payment  of 
money  as  were  founded  upon  contract,  citing  and  following 
in  this  respect  the  opinion  of  Judge  Field,  given  by  him 
when  on  the  bench  of  the  Supreme  Court  of  California,  in 
Perry  vs  Washburn  (20  Cal.,  318). 

The  Chief  Justice,  who  spoke  for  the  court  in  the  case, 
referred  to  the  power  of  taxation  in  the  general  govern- 
ment conferred  by  the  Constitution,  and  to  its  limitations. 
He  also  mentioned  the  restrictions  upon  the  States  to  tax 
exports  or  imports  except  for  a single  purpose,  or  to  lay 
any  duty  on  tonnage,  and  then  added  : 

“ In  respect,  however,  to  property,  business,  and  persons,  within  their 
respective  limits,  their  power  of  taxation  remained  and  remains  entire. 
It  is,  indeed,  a concurrent  power,  and  in  the  case  of  a tax  on  the  same 
subject  by  both  governments,  the  claim  of  the  United  States,  as  the  su- 
preme authority,  must  be  preferred ; but,  with  this  qualification,  it  is 
absolute.  The  extent  to  which  it  shall  be  exercised,  the  subjects  upon 
which  it  shall  be  exercised,  and  the  mode  in  which  it  shall  be  exercised, 
are  all  equally  within  the  discretion  of  the  Legislatures,  to  which  the 
States  commit  the  exercise  of  the  power.  That  discretion  is  restrained 


only  by  tbe  will  of  tlie  people  expressed  in  the  State  constitutions  or 
through  elections,  and  by  the  condition  that  it  must  not  be  so  used  as  to 
burden  or  embarrass  the  operations  of  the  national  government  * There 
is  nothing  in  the  Constitution  which  contemplates  or  authorizes  any  di- 
rect abridgment  of  this  power  by  national  legislation.  To  the  extent 
just  indicated,  it  is  as  complete  in  the  States  as  the  like  power,  within 
the  limits  of  the  Constitution,  is  complete  in  Congress.  If,  therefore,  the 
condition  of  any  State,  in  the  judgment  of  its  Legislature,  requires  the 
collection  of  taxes  in  kind — that  is  to  say,  by  the  delivery  to  the  proper 
officers  of  a certain  proportion  of  products,  or  in  gold  and  silver  bullion, 
or  in  gold  and  silver  coin — it  is  not  easy  to  see  upon  what  principle  the 
National  Legislature  can  interfere  with  the  exercise,  to  that  end,  of  this 
power,  original  in  the  States,  and  never  as  yet  surrendered.” 

In  Bronson  vs.  Rodes  (7  Wall.,  229)  the  question  was 
raised  whether  a previous  contract  for  the  payment  of  a 
certain  sum  in  gold  and  silver  coin  could  he  specifically  en- 
forced, or  whether  it  could  be  discharged,  under  the  legal- 
tender  act,  by  a tender  of  treasury  notes.  The  court  held 
that  the  contract  could  he  specifically  enforced.  It  is  dirti- 
cult,  at  this  day,  to  appreciate  fully  the  earnestness  of  the 
opposition  to  this  position.  The  fact  that  the  law  recog- 
nized two  different  kinds  of  currency,  and  that  one  only 
could  he  used  for  a certain  class  of  payments — that  is,  for 
duties  on  imports — would  seem  to  be  a conclusive  answer 
to  the  objections  urged.  As  two  kinds  of  currency  were 
made  lawful,  a contract  for  either  must  be  lawful  also.  A 
person  might  wish  coin  to  remit  abroad  or  to  pay  duties, 
or  because  it  could  be  more  safely  kept  at  his  residence, 
not  being  liable  to  be  destroyed  by  fire  or  injured  by  water 
or  other  casualties.  As  the  Chief  Justice,  who  gave  the 
opinion  of  the  court,  said  : 

“ The  currency  acts  themselves  provide  for  payments  in  coin.  Duties 
on  imports  must  be  paid  in  coin,  and  interest  on  the  public  debt,  in  the 
absence  of  other  express  provisions,  must  also  be  paid  in  coin.  And  it 
hardly  requires,  argument  to  prove  that  these  positive  requirements  can- 
not be  fulfilled  if  contracts  between  individuals  to  pay  coin  dollars  can 
be  satisfied  by  offers  to  pay  their  nominal  equivalent  in  note  dollars. 


* Or,  it  may  be  added,  to  impose  greater  burdens  upon  the  business  or 
property  in  the  State  of  non-resident,  than  upon  the  business  or  property 
of  resident  citizens. — (Ward  vs.  Maryland,  12  Wall.,  418.) 


69 


The  merchant  who  is  to  pay  duties  in  coin  must  contract  for  the  coin 
which  he  requires  ; the  bank  which  receives  the  coin  on  deposit  contracts 
to  repay  coin  on  demand  ; the  messenger  who  is  sent  to  the  hank  or  the 
custom-house  contracts  to  pay  or  deliver  the  coin  according  to  his  in- 
structions. These  are  all  contracts,  either  express  or  implied,  to  pay 
coin.  Is  it  not  plain  that  duties  cannot  be  paid  in  coin  if  these  contracts 
cannot  be  enforced? 

“An  instructive  illustration  may  be  derived  from  another  provision  of 
the  same  acts.  It  is  expressly  provided  that  all  dues  to  the  government, 
except  for  duties  on  imports,  may  be  paid  in  United  States  notes.  If, 
then,  the  government,  needing  more  coin  than  can  be  collected  from  du- 
ties, contracts  with  some  bank  or  individual  for  the  needed  amount,  to 
be  paid  at  a certain  day,  can  this  contract  for  coin  be  performed  by  the 
tender  of  an  equal  amount  in  note  dollars?  Assuredly  it  may  if  the 
note  dollars  are  a legal  tender  to  the  government  for  all  dues  except 
duties  on  imports.  And  yet  a construction  which  will  support  such  a 
tender  will  defeat  a very  important  intent  of  the  act. 

“ Another  illustration,  not  less  instructive,  may  be  found  in  the  con- 
tracts of  the  government  with  depositors  of  bullion  at  the  mint  to  pay 
them  the  ascertained  value  of  their  deposits  in  coin.  These  are  demands 
against  the  government  other  than  for  interest  on  the  public  debt ; and 
the  letter  of  the  acts  certainly  makes  United  States  notes  payable  for  all 
demands  against  the  government  except  such  interest.  But  can  any  such 
construction  of  the  act  be  maintained?  Can  judicial  sanction  be  given 
to  the  proposition  that  the  government  may  discharge  its  obligation  to 
the  depositors  of  bullion  by  tendering  them  a number  of  note  dollars 
equal  to  the  number  of  gold  or  silver  dollars  which  it  has  contracted  by 
law  to  pay  ? 

“ But  we  need  not  pursue  the  subject  further.  It  seems  to  us  clear 
beyond  controversy  that  the  act  must  receive  the  reasonable  construction, 
not  only  warranted,  but  required,  by  the  comparison  of  its  provisions 
with  the  provisions  of  other  acts,  and  with  each  other,  and  that  upon 
such  reasonable  construction  it  must  be  held  to  sustain  the  proposition 
that  express  contracts  to  pay  coined  dollars  can  only  be  satisfied  by  the 
payment  of  coined  dollars.” 

The  Confederate  States  also  issued  their  notes,  to  be 
used  as  currency,  but,  unlike  our  government,  they  did 
not  make  them  a legal  tender.  Contracts  at  the  South 
during  the  war  had  reference  generally  to  these  notes 
when  dollars  wrere  mentioned.  After  the  war,  suits 
being  brought  upon  many  of  these  contracts,  the  ques- 
tion was  raised  as  to  the  meaning  to  he  attached  to 
the  term  “ dollars  ” used  in  them.  On  the  one  hand,  it 


70 


was  said,  and  correctly,  that  by  “ dollars,”  as  defined  in 
the  statutes,  were  meant  pieces  of  gold  and  silver  coin  of  a 
prescribed  fineness  and  weight,  each  hearing  the  stamp  of 
the  United  States,  expressive  of  its  value.  On  the  other 
hand,  it  was  manifest  that  there  would  he  great  injustice 
in  giving  this  meaning  to  the  term,  when  by  it  only  Con- 
federate notes  were  intended.  As  well  might  it  he  claimed 
that  to  contracts  made  in  Germany,  where  the  term  “ dol- 
lars ” is  used,  a similar  construction  should  be  given  when 
the  contracts  are  sought  to  be  enforced  in  this  country, 
although  the  German  dollar  is  worth  only  sixty-nine  cents 
of  our  dollar. 

In  Thorington  vs.  Smith,  (8  Wall.,  1,)  which  was  be- 
fore the  court  at  the  December  term  of  1868,  this  question 
was  presented.  In  that  case  a tract  of  land  in  Alabama 
had  been  sold  in  1864  by  the  plaintiff,  Thorington,  to  the 
defendants  for  $45,000,  of  which  $35,000  were  paid,  and 
for  the  residue  a promissory  note  of  the  purchasers  was 
given.  Upon  the  suppression  of  the  rebellion,  Confeder- 
ate notes  became,  of  course,  valueless,  and,  in  1867,  Thor- 
ington filed  a hill  against  the  purchasers  for  the  enforce- 
ment of  his  lien  as  vendor,  claiming  $10,000  in  the  only 
money  then  current,  that  of  the  United  States.  The  de- 
fendants answered  that  at  the  time  of  the  purchase  Ala- 
bama was  one  of  the  Confederate  States,  and  from  that  por- 
tion where  the  parties  resided,  and  the  contract  was  made, 
the  authority  of  the  United  States  was  excluded  ; that 
there  was  no  gold  or  silver  coin  nor  were  any  notes  of  the 
United  States  in  circulation  there  ; that  the  only  currency 
in  use  for  the  ordinary  transactions  of  business  consisted 
of  Confederate  notes  ; that  the  land  purchased  was  worth 
only  $3,000  in  lawful  money  of  the  United  States  ; that 
the  contract  was  to  be  paid,  by  agreement  of  parties,  in 
Confederate  notes,  of  which  $35,000  were  thus  paid,  and 
that  the  balance  was.  to  be  discharged  in  the  same  way. 
It  was,  therefore,  insisted,  upon  this  state  of  facts,  that  the 
plaintiff  was  not  entitled  to  any  relief.  The  court  below, 


71 


being  of  opinion  that  the  contract  was  illegal  because  pay- 
able in  these  notes,  dismissed  the  hill,  hut  the  Supreme 
Court  reversed  the  decision,  holding  that  the  Confederate 
States  had  established  a government  of  paramount  force 
over  the  States  of  the  Confederacy,  and  that  by  its  au- 
thority their  notes  were  placed  in  circulation  and  became 
almost  exclusively  the  currency  of  those  States  ; that  con- 
tracts payable  in  them  could  not  for  that  reason  be  re- 
garded as  made  in  aid  of  the  insurrection  ; that  they  had 
no  necessary  relations  to  the  insurgent  government,  hut 
were  transactions  in  the  ordinary  course  of  civil  society, 
and  were  without  blame,  except  when  proved  to  have  been 
entered  into  with  actual  intent  to  further  the  rebellion. 
The  court  also  held  that  evidence  of  the  character  and 
value  of  this  currency  was  competent  and  admissible. 
Upon  this  latter  point  the  court,  speaking  through  the 
Chief  Justice,  said  : 

'•  It  is  quite  clear  that  a contract  to  pay  dollars,  made  between  citizens 
of  any  State  of  the  Union,  while  maintaining  its  constitutional  relations 
with  the  national  government,  is  a contract  to  pay  lawful  money  of  the 
United  States,  and  cannot  be  modified  or  explained  by  parol  evidence. 
But  it  is  equally  clear,  if  in  any  other  country,  coins  or  notes  denomi- 
nated dollars  should  be  authorized  of  different  value  from  the  coins  or 
notes  which  are  current  here  under  that  name,  that  in  a suit  upon  a con- 
tract to  pay  dollars,  made  in  that  country,  evidence  would  be  admitted 
to  prove  what  kind  of  dollars  were  intended,  and  if  it  should  turn  out 
that  foreign  dollars  were  meant,  to  prove  their  equivalent  value  in  lawful 
money  of  the  United  States.  Such  evidence  does  not  modify  or  alter  the 
contract.  It  simply  explains  an  ambiguity,  which,  under  the  general 
rules  of  evidence,  may  be  removed  by  parol  evidence.” 

It  was  accordingly  adjudged  that  the  vendor  could  re- 
cover only  the  actual  value  of  tlie  Confederate  notes  at 
the  time  and  place  of  the  contract,  in  lawful  money  of  the 
United  States. 

At  the  December  term  of  1872,  in  Hanauer  vs  Wood- 
ruff, this  case  was  cited,  and  in  reference  to  the  alleged 
illegality  of  the  contract,  because  made  in  Confederate 
currency,  Judge  Field,  speaking  for  the  court,  said  : 


“ The  transaction  was  in  a currency  imposed  by  irresistible  force  upon 
the  community,  in  which  currency  the  commonest  transactions  in  the 
daily  life  of  millions  of  people,  even  in  the  minutest  particulars,  were 
carried  on,  and  without  the  use  of  which  there  would  have  been  no  me- 
dium of  exchange  among  them.  The  simplest  purchase  in  the  market  of 
daily  food  would,  without  its  use,  have  been  attended  with  inconveniences 
which  it  is  difficult  to  estimate.  It  would  have  been  a cruel  and  oppres- 
sive judgment,  if  all  the  transactions  of  the  many  millions  of  people, 
composing  the  inhabitants  of  the  insurrectionary  States,  for  the  several 
years  of  the  war,  had  been  held  tainted  with  illegality  because  of  the  use 
of  this  forced  currency,  when  those  transactions  were  not  made  with  any 
reference  to  the  insurrectionary  government.” — (15  Wall.,  448.  See,  also, 
the  Confederate  note  case,  19  Wall.,  555.) 

The  constitutionality  of  the  legal-tender  clause  of  the  act 
of  Congress  was  discussed  in  Lane  County  vs.  Oregon, 
Bronson  vs.  Bodes,  and  in  other  cases  before  the  court, 
hut  they  either  went  off  on  some  other  point,  or  their  de- 
cision was  reserved  until  judgment  should  be  rendered  in 
Hepburn  vs.  Griswold,  where  the  question  was  directly 
presented  and  could  not  be  avoided.  That  case,  which  was 
before  the  court  both  at  the  December  term  of  1868,  and 
the  December  term  of  1869,  was  elaborately  argued,  first  on 
briefs  and  then  orally,  by  counsel  of  eminent  ability,  and 
it  was  long  held  under  advisement.  Indeed  it  was  after- 
wards said  by  some  of  the  judges  that  no  case  before  the 
court  since  its  organization  had  been  more  fully  pre- 
sented or  more  deliberately  considered.  The  question  was 
whether  the  holder  of  a note  payable  in  dollars,  made  be- 
fore the  legal-tender  act  was  passed,  was  obliged  in  law  to 
accept  in  payment  United  States  notes,  equal  in  nominal 
amount  to  the  sum  due,  when  tendered  by  the  maker  ; or 
in  other  words,  whether  debts  contracted  previous  to  the 
legal-tender  act  could  be  discharged,  against  the  consent 
of  the  holder,  by  legal-tender  notes.  Tbe  presentation  of 
the  question  placed  the  Chief  Justice  in  a very  embarrass- 
ing position.  The  provision  assailed  had  been  recom- 
mended by  him  when  Secretary  of  the  Treasury,  though 
with  much  doubt  and  hesitation.  It  did  not,  however 
meet  the  approval  of  all  the  lawyers  of  the  Senate. 


Some  of  the  ablest  of  them,  like  Collamer  and  Fessenden, 
opposed  it  as  both  unnecessary  and  unconstitutional.  But 
as  the  war  continued,  and  immense  drafts  were  made  upon 
the  Treasury,  the  validity  of  the  provision  was  generally 
acquiesced  in  as  a matter  of  necessity.  So  when  the  ques- 
tion came  before  the  court  for  adjudication  a large  portion 
of  the  people  had  come  to  believe  in  its  constitutionality, 
and  several  supreme  courts  in  the  loyal  States  had  pro- 
nounced in  its  favor.  In  addition  to  all  this,  three  of  the 
judges  expressed  themselves  strongly  on  the  subject  as 
having  no  doubt  whatever  of  the  validity  of  the  provision. 
A regard  for  consistency  urged  him  to  concur  with  their 
views.  His  mind  was  sorely  perplexed,  and  the  question 
was  examined  and  re-examined  by  him  with  painful  anx- 
iety. But  his  sense  of  duty  prevailed.  He  could  not  be 
false  to  his  convictions  as  a judge  in  order  to  preserve  his 
consistency  as  a statesman.  He  pronounced  against  the 
validity  of  the  provision  and  read  the  opinion  of  the  court. 
That  opinion  is  well  known  to  the  country.  It  presents 
the  unconstitutiouality  of  the  provision  in  the  clearest 
light.  In  it  he  alludes  to  his  own  change  of  views  on  the 
question,  as  follows  : 

“ It  is  not  surprising  that  amid  the  tumult  of  the  late  civil  war,  and 
under  the  influence  of  apprehensions  for  the  safety  of  the  Republic,  almost 
universal,  different  views,  never  before  entertained  by  American  states- 
men or  jurists,  were  adopted  by  many.  The  time  was  not  favorable  to 
considerate  reflection  upon  the  constitutional  limits  of  legislative  or  ex- 
ecutive authority.  If  power  was  assumed  from  patriotic  motives,  the  as- 
sumption found  ready  justification  in  patriotic  hearts.  Many  who 
doubted  yielded  their  doubts ; many  who  did  not  doubt  were  silent. 
Some  who  wTere  strongly  averse  to  making  government  notes  a legal  ten- 
der felt  themselves  constrained  to  acquiesce  in  the  views  of  the  advocates 
of  the  measure.  Not  a few  who  then  insisted  upon  its  necessity,  or  ac- 
quiesced in  that  view,  have,  since  the  return  of  peace,  and  under  the  in- 
fluence of  the  calmer  time,  reconsidered  their  conclusions,  and  now  con- 
cur in  those  which  we  have  just  announced.” — (8  Wall.,  625.) 


The  views  of  the  Chief  Justice,  as  well  as  the  action  of 
the  court,  in  the  several  cases  under  the  legal-tender  act, 


74 


have  been  fully  stated,  because  they  bad  the  entire  con- 
currence and  earnest  support  of  Judge  Field,  and  because 
of  what  subsequently  occurred  to  bring  about  a reconsid- 
eration of  the  question  decided  and  a reversal  of  the  judg- 
ment of  the  court.  The  Judge  bad  frequent  consultations 
upon  the  questions  raised  with  the  Chief  Justice,  who 
never  hesitated  to  express  in  strong  terms  his  appreciation 
of  the  Judge’s  counsel. 

The  decision  was  received  by  the  country,  excepting 
the  debtor  class,  with  favor.  Many  who  did  not  object 
to  the  application  of  the  act  to  future  contracts  were  re- 
joiced that  the  injustice,  likely  to  attend  its  application  to 
past  contracts,  was  prevented.  As  to  future  contracts, 
they  said,  parties  acted  with  the  law  before  them.  But 
from  the  debtor  class,  and  especially  the  large  corporations 
of  the  country,  the  greater  part  of  whose  liabilities  had 
been  created  before  the  war,  the  decision  met  with  decided 
hostility.  A movement  was  at  once  set  on  foot  to  obtain 
its  reversal.  The  legislation  of  Congress,  suggested  by 
the  court  in  the  hope  that  it  might  to  some  degree  be  re- 
lieved of  the  great  pressure  of  labor  upon  it,  favored  this 
movement.  In  the  winter  of  1869  members  of  the  Ju- 
diciary Committee  of  the  Senate  informed  the  court  that 
they  would  be  glad  to  receive  from  it  suggestions  for 
changes  in  the  judicial  system  with  a view  to  facilitate 
the  discharge  of  its  business.  The  members  of  the  court 
thereupon  met  and  appointed  Judges  Miller  and  Field  a 
committee  to  consider  the  subject  and  report  what  changes 
should  be  recommended.  They  suggested  a bill  for  the 
appointment  of  independent  circuit  judges.  The  sugges- 
tion was  favorably  received,  and  a bill  for  that  purpose  was 
prepared  by  them,  and,  after  some  verbal  changes,  was 
approved  by  the  judges  and  sent  to  the  Judiciary  Com- 
mittee of  the  Senate.  It  was  then  reported  by  Senator 
Trumbull  from  that  committee,  with  some  slight  changes, 
and  was  soon  after  passed  by  both  Houses.  President 
Johnson  refused  to  sign  it,  but  after  Glen.  Grant  became 


President  it  was  again  introduced  into  the  Senate  and  was 
soon  passed,  to  take  effect  on  the  1st  of  December,  1869. 
It  increased  the  number  of  judges  of  the  Supreme  Court 
to  nine,  thus  necessitating  the  appointment  of  a new  mem- 
ber, and  created  nine  independent  circuit  judges.  As  the 
court  then  consisted  of  only  eight  judges,  it  was  neces- 
sary, to  obtain  a majority  in  favor  of  the  legal-tender 
provision,  that  two  new  judges  should  be  appointed  who 
would  agree  with  the  three  who  had  opposed  the  late 
decision.  It  was,  therefore,  suggested  that  the  physical 
infirmities  of  Judge  Grier  were  such  that  he  should  re- 
tire. At  that  time  he  was  unable  to  walk  without  assist- 
ance from  others,  and  he  was  accompanied  by  his  servant 
into  the  court-room  whenever  he  took  his  seat  on  the 
bench.  Owing  to  the  frequent  comments  in  the  public 
journals  upon  his  infirmities,  and  the  suggestions  of 
some  friends,  he  was  induced  to  send  in  his  resigna- 
tion. His  mind  was  then  as  clear  as  ever,  but  his  physi- 
cal system  was  greatly  impaired.  The  letter  of  the 
Judges-  to  him  on  his  resignation  testifies  to  their  high 
appreciation  of  the  purity  of  his  character,  the  great 
powers  of  his  intellect,  and  his  profound  knowledge  of 
the  law.  His  resignation  took  effect  the  1st  of  February, 
1870.  Mr.  Stanton  was  appointed  his  successor,  but  he 
died  a few  days  afterwards,  before  even  Judge  Grier’s 
resignation  took  effect.  So  it  was  said  by  the  present  Sec- 
retary of  State,  Mr.  Evarts,  that  Judge  Grier  had  the 
singular  experience  of  attending  the  funeral  of  his  suc- 
cessor whilst  he  himself  was  still  on  the  bench.  Judge 
Strong  was  then  nominated  and  confirmed.  For  the  new 
judgeship  created  Mr.  E.  11.  Hoar,  of  Massachusetts,  the 
Attorney-General,  was  nominated,  but  he  was  rejected  by 
the  Senate.  Judge  Bradley  was  then  nominated  and 
confirmed. 

There  have  been  many  things  of  an  unpleasant  char- 
acter said  in  regard  to  the  appointment  of  Judges  Strong 
and  Bradley,  but  the  writer  of  this  narrative  cannot 


give  any  approval  of  them.  Undoubtedly  Mr.  Hoar,  the 
Attorney-General,  was  very  active  and  earnest  to  se- 
cure the  appointment  of  judges  who  would  favor  a re- 
versal of  the  decision  against  the  legal-tender  provision. 
He  openly  said  as  much.  It  is  also  true  that  Judge 
Strong  was  known  to  be  in  favor  of  the  constitutionality 
of  that  provision.  Whilst  a judge  of  the  Supreme  Court 
of  Pennsylvania  he  had  written  an  opinion  to  that 
effect.  It  was  also  well  known  that  Judge  Bradley, 
as  counsel  of  the  Camden  and  Amboy  Railroad  Company, 
had  given  a similar  opinion.  Their  appointment  was  un- 
doubtedly advocated  partly  in  view  of  these  facts,  and  this 
can  be  said  without  any  injurious  reflection  upon  them. 
It  is  probable  that  nearly  all  appointments  of  judges  are 
made  with  some  reference  to  their  opinions  as  to  the 
construction  to  be  given  to  the  Constitution.  It  is  not 
at  all  likely  that  during  the  war  any  one  would  have  been 
nominated,  or,  if  nominated,  have  been  confirmed,  who 
believed  that  under  it  secession  was  a constitutional  rem- 
edy of  the  States  for  their  grievances,  or  who  did  not  ap- 
prove of  the  forcible  suppression  of  the  rebellion  by  the 
General  Government.  There  could  be,  therefore,  no  just 
ground  of  reproach  against  those  gentlemen  because  they 
were  appointed  in  view  of  their  previously  expressed 
opinions.  The  complaint  against  them  arose  from  the  re- 
versal, through  their  aid,  of  the  previously  well-considered 
judgment  of  the  majority  of  the  Court,  without  any  reasons 
being  advanced  different  from  those  presented  when  the 
case  was  originally  heard.  Thoughtful  men,  without  ques- 
tioning the  learning  and  ability  of  Judges  Strong  gnd 
Bradley,  felt  that  it  was  wrong  that  a solemn  judgment 
of  the  Court,  affecting  great  public  interests,  reached  only 
after  long  and  careful  consideration,  should  be  reversed 
by  a mere  change  in  its  personnel. 

Soon  after  the  new  judges  bad  taken  their  seats, 
Attorn ey-Gen era!  Hoar  moved  that  two  cases  then  pend- 


ing  undecided — the  Latham  case  and  the  Derning  case, 
appealed  from  the  Court  of  Claims — should  be  set  down 
for  argument,  and  suggested  that  the  legal-tender  pro- 
vision should  be  considered  in  them.  This  application 
created  a good  deal  of  feeling,  and  led  to  an  unpleasant 
controversy  among  members  of  the  court.  The  ma- 
jority— consisting  of  the  three  judges  who  had  previously 
dissented  from  the  opinion  in  Hepburn  vs.  Griswold,  and 
the  two  newly  appointed  judges — ordered  the  argument, 
and  it  would  have  taken  place  but  from  the  fact  that 
the  appeals  were  dismissed  by  the  appellants  and  the 
rehearing  of  the  question  thus  prevented.  Those  who 
take  any  interest  in  this  unfortunate  controversy  will  find 
the  particulars  stated  in  the  life  of  Chief  Justice  Chase 
and  in  the  journals  of  the  day.  It  is  not  the  intention  of 
the  writer  of  this  narrative  to  recall  them.  Judges  Xel- 
son,  Clifford,  and  Field  were  on  pleasant  terms  with  all 
their  associates,  and  however  great  the  difference  of  opin- 
ion between  them  and  the  other  judges,  their  personal  re- 
lations were  not  disturbed. 

At  the  following  term  of  December,  1870,  two  other 
cases  came  before  the  court  involving  the  constitutionality 
of  the  legal-tender  cases — Knox  vs.  Lee  and  Parker  vs. 
Davis.  They  are  reported  in  12th  Wallace,  under  the  title 
of  “Legal-Tender  Cases.”  In  them  the  whole  question  of 
the  constitutionality  of  the  legal-tender  clause  was  rear- 
gued and  reconsidered.  The  previous  judgment  in  Hep- 
burn vs.  Griswold  was  reversed  by  the  judgment  of  five 
against  four,  and  the  constitutionality  of  the  tender  clause 
asserted.  Judge  Strong  gave  the  opinion  of  the  court. 
The  Chief  Justice  and  Judges  Clifford  and  Field  each 
gave  a dissenting  opinion.  Of  these  dissenting  opinions 
this  can  be  said:  that  they  exhaust  the  whole  subject,  and 
it  is  difficult  to  understand  how  any"  one,  after  reading 
them,  can  doubt  that  the  Constitution  intended  that  gold 
and  silver  alone  should  be  a legal  tender  in  the  United 
States.  As  said  by  Judge  Field  in  his  opinion  : 


78 


“ If  we  consider  the  history  of  the  times  when  the  Constitution  was 
adopted;  the  intentions  of  the  framers  of  that  instrument,  as  shown  in 
their  debates  ; the  contemporaneous  exposition  of  the  coinage  power  in 
the  State  conventions  assembled  to  consider  the  Constitution,  and  in  the 
public  discussions  before  the  people;  the  natural  meaning  of  the  terms 
used ; the  nature  of  the  Constitution  itself  as  creating  a government  of 
enumerated  powers;  the  legislative  exposition  of  nearly  three-quarters  of 
a century;  the  opinions  of  judicial  tribunals,  and  the  recorded  utterances 
of  statesmen,  jurists,  and  commentators,  it  would  seem  impossible  to  doubt 
that  the  only  standard  of  value  authorized  by  the  Constitution  was  to  con- 
sist of  metallic  coins  struck  or  regulated  by  the  direction  of  Congress,  and 
that  the  power  to  establish  any  other  standard  was  denied  by  that  in- 
strument.” 

No  adequate  account  of  these  dissenting  opinions  can 
be  given  without  a much  fuller  citation  than  this  narra- 
tive permits.  A few  extracts  will  be  made  from  the  one 
by  Judge  Field,  as  it  is  only  with  his  judicial  career  that 
this  narrative  is  concerned. 

Referring  to  the  position  urged  on  the  argument  of  the 
case,  that  as  the  issue  of  the  notes  was  authorized  under 
the  power  to  borrow  money,  the  annexing  to  them  the 
quality  of  legal  tender  was  an  appropriate  means  to  the 
execution  of  that  power,  as  it  enhanced  their  value,  and 
thus  increasing  their  circulation,  induced  parties  the  more 
readily  to  advance  upon  them,  the  Judge  said  as  follows: 

The  power  of  Congress  to  borrow  mouey  “is  not  different  in  its  nature 
or  essential  incidents  from  the  power  to  borrow  possessed  by  individuals, 
and  is  not  to  receive  a larger  definition.  Nor  is  it  different  from  the 
power  often  granted  to  public  aDd  private  corporations.  The  grant,  it 
is  true,  is  usually  accompanied  in  these  latter  cases  with  limitations  as 
to  the  amount  to  be  borrowed,  and  a designation  of  the  objects  to  which 
the  money  shall  be  applied,— limitations  which  in  no  respect  affect  the 
nature  of  the  power.  The  terms  ‘ power  to  borrow  money  ’ have  the 
same  meaning  in  all  these  cases,  and  not  one  meaning  when  used  by  in- 
dividuals, another  when  granted  to  corporations,  and  still  a different  one 
when  possessed  by  Congress.  They  mean  only  a power  to  contract  for 
a loan  of  money  upon  considerations  to  be  agreed  between  the  parties. 
The  amount  of  the  loan,  the  time  of  repayment,  the  interest  it  shall  bear, 
and  the  form  in  which  the  obligation  shall  be  expressed  are  simply  mat- 
ters of  arrangement  between  the  parties.  They  concern  no  one  else.  If 
is  no  part  or  incident  of  a contract  of  this  character  that  the  rights  or 
interests  of  third  parties,  strangers  to  the  matter,  shall  be  in  any  respect 


affected.  The  transaction  is  completed  when  the  lender  has  parted  with 
his  money,  and  the  borrower  has  given  his  promise  of  repayment  at  the 
time,  and  in  the  manner,  and  with  the  securities  stipulated  between 
them. 

“ As  an  inducement  to  the  loan,  and  security  for  its  repayment,  the 
borrower  may  of  course  pledge  such  property  or  revenues,  and  annex  to 
his  promises  such  rights  and  privileges  as  he  may  possess.  His  stipula- 
tions in  this  respect  are  necessarily  limited  to  his  own  property,  rights,  and 
privileges,  and  cannot  extend  to  those  of  other  persons. 

“Xow,  whether  a borrower — he  the  borrower  an  individual,  a corpora- 
tion. or  the  government — can  annex  to  the  bonds,  notes,  or  other  evi- 
dences of  debt  given  for  the  money  borrowed,  any  quality  by  which  they 
will  serve  as  a means  of  satisfying  the  contracts  of  other  parties,  must 
necessarily  depend  upon  the  question  whether  the  borrower  possesses  any 
right  to  interfere  with  such  contracts,  and  determine  how  they  shall  he 
satisfied.  The  right  of  the  borrower  in  this  respect  rests  upon  no  different 
foundation  than  the  right  to  interfere  with  any  other  property  of  third 
parties.  And  if  it  will  not  be  contended,  as  I think  I may  assume  it 
will  not  he,  that  the  borrower  possesses  any  right,  in  order  to  make  a 
loan,  to  interfere  with  the  tangible  and  visible  property  of  third  parties, 
I do  not  perceive  how  it  can  be  contended  that  he  has  any  right  to  inter- 
fere with  their  property  when  it  exists  in  the  form  of  contracts.  A large 
part  of  the  property  of  every  commercial  people  exists  in  that  form,  and 
the  principle  which  excludes  a stranger  from  meddling  with  another’s 
property  which  is  visible  and  tangible,  equally  excludes  him  from  med- 
dling with  it  when  existing  in  the  form  of  contracts. 

“ That  an  individual  or  a corporation  borrowing  possesses  no  power  to 
annex  to  his  evidences  of  indebtedness  any  quality  by  which  the  holder 
will  he  enabled  to  change  his  contracts  with  third  parties,  strangers  to 
the  loan,  is  admitted  ; hut  it  is  contended  that  Congress  possesses  such 
power  because,  in  addition  to  the  express  power  to  borrow  money,  there  is 
a clause  in  the  Constitution  which  authorizes  Congress  to  make  all  laws 
‘necessary  and  proper’  for  the  execution  of  the  powers  enumerated. 
This  clause  neither  augments  nor  diminishes  the  expressly  designated 
powers.  It  only  states  in  terms  what  Congress  would  equally  have  had 
the  right  to  do  without  its  insertion  in  the  Constitution.  It  is  a general 
principle  that  a power  to  do  a particular  act  includes  the  power  to  adopt 
all  the  ordinary  and  appropriate  means  for  its  execution.'’ 

“ That  is  only  appropriate  which  has  some  relation  of  fitness 

to  an  end.  Borrowing,  as  already  stated,  is  a transaction  by  which,  on 
one  side,  the  lender  parts  with  his  money,  and  on  the  other  the  borrower 
agrees  to  repay  it  in  such  form  and  at  such  time  as  may  be  stipulated. 
Though  not  a necessary  part  of  the  contract  of  borrowing,  it  is  usual  for 
the  borrower  to  offer  securities  for  the  repayment  of  the  loan.  The  fit- 
ness which  would  render  a means  appropriate  to  this  transaction  thus 
considered  must  have  respect  to  the  terms  which  are  essential  to  the  con- 


80 


tract,  or  to  the  securities  which  the  borrower  may  furnish  as  an  induce- 
ment to  the  loan.  The  quality  of  legal  tender  does  not  touch  the  terms 
of  the  contract  of  borrowing,  nor  does  it  stand  as  a security  for  the  loan. 
A security  supposes  some  right  or  interest  in  the  thing  pledged,  which 
is  subject  to  the  disposition  of  the  borrower. 

“ There  lias  been  much  confusion  on  this  subject  from  a failure  to  dis- 
tinguish between  the  adaptation  of  particular  means  to  an  end  and  the 
effect,  or  supposed  effect,  of  those  means  in  producing  results  desired  by 
the  government.  The  argument  is  stated  thus : the  object  of  bor- 
rowing is  to  raise  funds ; the  annexing  of  the  quality  of  legal  tender  to 
the  notes  of  the  government  induces  parties  the  more  readily  to  loan  upon 
them;  the  result  desired  by  the  government — the  acquisition  of  funds — 
is  thus  accomplished  ; therefore,  the  annexing  of  the  quality  of  legal 
tender  is  an  appropriate  means  to  the  execution  of  the  power  to  borrow. 
But  it  is  evident  that  the  same  reasoning  would  justify,  as  appropriate 
means  to  the  execution  of  this  power,  any  measures  which  would  result 
in  obtaining  the  required  funds.  The  annexing  of  a provision  by  which 
the  notes  of  the  government  should  serve  as  a free  ticket  in  the  public 
conveyances  of  the  country,  or  for  ingress  into  places  of  public  amuse- 
ment, or  which  would  entitle  the  holder  to  a,  percentage  out  of  the  reve- 
nues of  private  corporations,  or  exempt  his  entire  property,  as  well  as 
the  notes  themselves,  from  State  and  municipal  taxation,  would  produce 
a ready  acceptance  of  the  notes.  But  the  advocate  of  the  most  liberal 
construction  would  hardly  pretend  that  these  measures,  or  similar  meas- 
ures touching  the  property  of  third  parties,  would  be  appropriate  as  a 
means  to  the  execution  of  the  power  to  borrow.  Indeed,  there  is  no  in- 
vasion by  government  of  the  rights  of  third  parties  which  might  not 
thus  be  sanctioned  upon  the  pretence  that  its  allowance  to  the  holder  of 
the  notes  would  lead  to  their  ready  acceptance,  and  produce  the  desired 
loan. 

“ The  actual  effect  of  the  quality  of  legal  tender  in  inducing  parties  to 
receive  them  was  necessarily  limited  to  the  amount  required  by  existing 
debtors,  who  did  not  scruple  to  discharge  with  them  their  pre-existing 
liabilities.  For  moneys  desired  from  other  parties,  or  supplies  required 
for  the  use  of  the  army  or  navy,  the  provision  added  nothing  to  the 
value  of  the  notes.  Their  borrowing  power  or  purchasing  power  de- 
pended, by  a general  and  an  universal  law  of  currency,  not  upon  the 
legal-tender  clause,  but  upon  the  confidence  which  the  parties  receiving 
the  notes  had  in  their  ultimate  payment.  Their  exchangeable  value  was 
determined  by  this  confidence,  and  every  person  dealing  in  them  ad- 
vanced his  money  and  regulated  his  charges  accordingly.” 

“ Without  the  legal-tender  provision  the  notes  would  have  cir- 
culated equally  well  and  answered  all  the  purposes  of  government — the 
only  direct  benefit  resulting  from  that  provision  arising,  as  already  stated, 
from  the  ability  it  conferred  upon  unscrupulous  debtors  to  discharge  with 
them  previous  obligations.  The  notes  of  State  banks  circulated  without 


81 


possessing  that  quality  and  supplied  a currency  for  the  people  just  so 
long  as  confidence  in  the  ability  of  the  banks  to  redeem  the  notes  contin- 
ued. The  notes  issued  by  the  national  bank  associations  during  the  war, 
under  the  authority  of  Congress,  amounting  to  tlu'ee  hundred  millions, 
which  were  never  made  a legal  tender,  circulated  equally  well  with  the 
notes  of  the  United  States.  Neither  their  utility  nor  their  circulation  was 
diminished  in  any  degree  by  the  absence  of  a legal-tender  quality.  They 
rose  and  fell  in  the  market  under  the  same  influences  and  precisely  to  the 
same  extent  as  the  notes  of  the  United  States,  which  possessed  this  qual- 
ity.” 

Referring  to  the  position  that  the  annexing  of  the  qual- 
ity of  legal  tender  was  a necessary  means  to  the  exercise 
of  other  powers  of  Congress,  particularly  to  declare  war,  to 
suppress  insurrection,  to  raise  and  support  armies,  and  to 
provide  and  maintain  a navy,  all  of  which  were  called  into 
exercise  and  severely  taxed  at  the  time,  the  Judge  said  as 
follows : 

“ It  is  evident  that  the  notes  have  no  relation  to  these  powers,  or  to  any 
other  powers  of  Congress,  except  as  they  furnish  a convenient  means  for 
raising  money  for  their  execution.  The  existence  of  the  war  only  in- 
creased the  urgency  of  the  government  for  funds.  It  did  not  add  to  its 
powers  to  raise  such  funds,  or  change,  in  any  respect,  the  nature  of  those 
powers  or  the  transactions  which  they  authorized.  If  the  power  to  en- 
graft the  quality  of  legal  tender  upon  the  notes  existed  at  all  with  Con- 
gress, the  occasion,  the  extent,  and  the  purpose  of  its  exercise  were  mere 
matters  of  legislative  discretion ; and  the  power  may  be  equally  exerted 
when  a loan  is  made  to  meet  the  ordinary  expenses  of  government  in 
time  of  peace,  as  when  vast  sums  are  needed  to  raise  armies  and  provide 
navies  in  time  of  war.  The  wants  of  the  government  can  never  be  the 
measure  of  its  powers. 

“ The  Constitution  has  specifically  designated  the  means  by  which  funds 
can  be  raised  for  the  uses  of  the  government,  either  in  war  or  peace. 
These  are  taxation,  borrowing,  coining,  and  the  sale  of  its  public  prop- 
erty. Congress  is  empowered  to  levy  and  collect  taxes,  duties,  imposts, 
and  excises  to  any  extent  to  which  the  public  necessity  may  require. 
Its  power  to  borrow  is  equally  unlimited.  It  can  convert  any  bullion  it 
may  possess  into  coin,  and  it  can  dispose  of  the  public  lands  and  other 
property  of  the  United  States  or  any  part  of  such  property.  The  desig- 
nation of  these  means  exhausts  the  powers  of  Congress  on  the  subject  of 
raising  money.  The  designation  of  the  means  is  a negation  of  all  others, 
for  the  designation  would  be  unnecessary  and  absurd  if  the  use  of  any 
and  all  means  were  permissible  without  it.  These  means  exclude  a re- 
sort to  forced  loans,  and  to  any  compulsory  interference  with  the  prop- 
erty of  third  persons,  except  by  regular  taxation  in  one  of  the  forms 
mentioned.” 


6 


After  showing  that  the  act  of  Congress  impaired  the 
obligation  of  past  contracts,  and  referring  to  the  statement 
of  Judge  Miller,  in  his  dissenting  opinion  in  Hepburn  vs. 
Griswold,  that  the  Constitution  does  not  forbid  legislation 
having  that  effect,  the  Judge  said  as  follows  : 

“ It  is  true  there  is  no  provision  in  the  Constitution  forbidding  in  ex- 
press terms  such  legislation.  And  it  is  also  true  that  there  are  express 
powers  delegated  to  Congress,  the  execution  of  which  necessarily  operates 
to  impair  the  obligation  of  contracts.  It  was  the  object  of  the  framers 
of  that  instrument  to  create  a national  government,  competent  to  repre- 
sent the  entire  country  in  its  relations  with  foreign  nations,  and  to  ac- 
complish by  its  legislation  measures  of  common  interest  to  all  the  people, 
which  the  several  States  in  their  independent  capacities  were'  incapable 
of  effecting,  or  if  capable,  the  execution  of  which  would  be  attended 
with  great  difficulty  and  embarrassment.  They,  therefore,  clothed  Con- 
gress with  all  the  powers  essential  to  the  successful  accomplishment  of 
these  ends,  and  carefully  withheld  the  grant  of  all  other  powers.  Some 
of  the  powers  granted,  from  their  very  nature,  interfere  in  their  execu- 
tion with  contracts  of  parties.  Thus  war  suspends  intercourse  and  com- 
merce between  citizens  or  subjects  of  belligerent  nations ; it  renders  during 
its  continuance  the  performance  of  contracts,  previously  made,  unlawful. 
These  incidental  consequences  were  contemplated  in  the  grant  of  the 
war  power.  So  the  regulation  of  commerce  and  the  imposition  of  duties 
may  so  affect  the  prices  of  articles  imported  or  manufactured  as  to  es- 
sentially alter  the  value  of  previous  contracts  respecting  them ; but  this 
incidental  consequence  was  seen  in  the  grant  of  the  power  over  commerce 
and  duties.  There  can  be  no  valid  objection  to  laws  passed  in  execution 
of  express  powers  that  consequences  like  these  follow  incidentally  from 
their  execution.  But  it  is  otherwise  when  such  consequences  do  not  fol- 
low incidentally,  but  are  directly  enacted. 

“ The  only  express  authority  for  any  legislation  affecting  the  obligation 
of  contracts  is  found  in  the  power  to  establish  a uniform  system  of  bank- 
ruptcy, the  direct  object  of  which  is  to  release  insolvent  debtors  from 
their  contracts  upon  the  surrender  of  their  property.  From  this  express 
grant  in  the  Constitution  I draw  a very  different  conclusion  from  that 
drawn  in  the  dissenting  opinion  in  Hepburn  vs.  Griswold,  and  in  the 
opinion  of  the  majority  of  the  court  just  delivered.  To  my  mind  it  is  a 
strong  argument  that  there  is  no  general  power  in  Congress  to  interfere 
with  contracts,  that  a special  grant  was  regarded  as  essential  to  authorize 
an  uniform  system  of  bankruptcy.  If  such  general  power  existed  the 
delegation  of  an  express  power  in  the  case  of  bankrupts  was  unneces- 
sary. As  very  justly  observed  by  counsel,  if  this  sovereign  power  could 
be  taken  in  any  case  without  express  grant,  it  could  be  taken  in  con- 
nection with  bankruptcies,  which  might  be  regarded  in  some  respects  as 
a regulation  of  commerce  made  in  the  interest  of  traders. 


83 


“The  grant  of  a limited  power  over  the  subject  of  contracts  necessarily 
implies  that  the  framers  of  the  Constitution  did  not  intend  that  Congress 
should  exercise  unlimited  power,  or  any  power  less  restricted.  The 
limitation  designated  is  the  measure  of  congressional  power  over  the 
subject.  This  follows  from  the  nature  of  the  instrument,  as  one  of 
enumerated  powers. 

“ The  doctrine  that  where  a power  is  not  expressly  forbidden  it  may 
he  exercised  would  change  the  whole  character  of  our  government.  As 
I read  the  writings  of  the  great  commentators  and  the  decisions  of  this 
court,  the  true  doctrine  is  the  exact  reverse,  that  if  a power  is  not  in 
terms  granted,  and  is  not  necessary  and  proper  for  the  exercise  of  a power 
thus  granted,  it  does  not  exist.” 

And,  after  referring  to  the  interference  with  contracts 
by  the  legislation  of  the  several  States,  previous  to  the 
adoption  of  the  Constitution,  in  the  form  of  tender  laws, 
appraisement  laws,  installment  laws,  and  suspension  laws, 
which  was  the  cause  of  great  oppression  and  injustice, 
and  which  Judge  Story  declared  prostrated  all  private 
credit  and  all  private  morals,  the  Judge  continued  as 
follows  : 

“ It  would  require  very  clear  evidence,  one  would  suppose,  to  induce  a 
belief  that  with  the  evils,  resulting  from  what  Marshall  terms  the  sys- 
tem of  lax  legislation  following  the  Revolution,  deeply  impressed  on  their 
minds,  the  framers  of  the  Constitution  intended  to  vest  in  the  new  gov- 
ernment created  by  them  this  dangerous  and  despotic  power  which  they 
were  unwilling  should  remain  with  the  States,  and  thus  widen  the  pos- 
sible sphere  of  its  exercise. 

“ When  the  possession  of  this  power  has  been  asserted  in  argument, 
(for  until  now  it  lias  never  been  asserted  in  any  decision  of  this  court) 
it  has  been  in  cases  where  a supposed  public  benefit  resulted  from  the 
legislation,  or  where  the  interference  with  the  obligation  of  the  contract 
was  very  slight.  Whenever  a clear  case  of  injustice,  in  the  absence  of 
such  supposed  public  good,  is  stated,  the  exercise  of  the  power  by  the 
government  is  not  only  denounced,  but  the  existence  of  the  power  is  de- 
nied. No  one,  indeed,  is  found  hold  enough  to  contend  that  if  A has  a 
contract  for  one  hundred  acres  of  land,  or  one  hundred  pounds  of  fruit, 
or  one  hundred  yards  of  cloth,  Congress  can  pass  a law  compelling  him 
to  accept  one-half  of  the  quantity  in  satisfaction  of  the  contract.  But 
Cougress  has  the  same  power  to  establish  a standard  of  weights  and 
measures  as  it  has  to  establish  a standard  of  value,  and  can,  from  time 
to  time,  alter  such  standard.  It  can  declare  that  the  acre  shall  consist  of 
eighty  square  rods  instead  of  one  hundred  and  sixty,  the  pound  of  eight 
ounces  instead  of  sixteen,  and  the  foot  of  six  inches  instead  of  twelve, 
and  if  it  could  compel  the  acceptance  of  the  same  number  of  acres, 


84 


pounds,  or  yards  after  such  alteration,  instead  of  the  actual  quantity  stip- 
ulated, then  the  acceptance  of  one-half  of  the  quantity  originally  desig- 
nated could  be  directly  required  without  going  through  the  form  of  alter- 
ing the  standard.  No  just  man  could  be  imposed  upon  by  this  use  of 
words  in  a double  sense,  where  the  same  names  were  applied  to  denote 
different  quantities  of  the  same  thing,  nor  would  his  condemnation  of 
the  wrong  committed  in  such  case  be  withheld  because  the  attempt  was 
made  to  conceal  it  by  the  jugglery  of  words. 

“ The  power  of  Congress  to  interfere  with  contracts  for  the  payment  of 
money  is  not  greater  or  in  any  particular  different  from  its  power  with 
respect  to  contracts  for  lands  or  goods.  The  contract  is  not  fulfilled  any 
more  in  one  case  than  in  the  other  by  the  delivery  of  a thing  which  is 
not  stipulated,  because  by  legislative  action  it  is  called  by  the  same 
name.  Words  in  contracts  are  to  be  construed  in  both  cases  in  the  sense 
in  which  they  were  understood  by  the  parties  at  the  time  of  the  contract. 

“ Let  us  for  a moment  see  where  the  doctrine  of  the  power  asserted  will 
lead.  Congress  has  the  undoubted  right  to  give  such  denominations  as  it 
chooses  to  the  coin  struck  by  its  authority,  and  to  change  them.  It  can 
declare  that  the  dime  shall  hereafter  be  called  a dollar,  or,  what  is  the 
same  thing,  it  may  declare  that  the  dollar  shall  hereafter  be  composed  of 
the  grains  of  silver  which  now  compose  the  dime.  But  would  anybody 
pretend  that  a contract  for  dollars,  composed  as  at  present,  could  be  satis- 
fied by  the  delivery  of  an  equal  number  of  dollars  of  the  new  issue?  I 
have  never  met  any  one  who  would  go  to  that  extent.  The  answer  al- 
ways has  been  that  ^vould  be  too  flagrantly  unjust  to  be  tolerated.  Yet 
enforcing  the  acceptance  of  paper  promises  or  paper  dollars,  if  the  prom- 
ises can  be  so  called,  in  place  of  gold  or  silver  dollars,  is  equally  enforcing 
a departure  from  the  terms  of  the  contract,  the  injustice  of  the  measure 
depending  entirely  upon  the  actual  value  at-  the  time  of  the  promises  in  the 
market.  Now  reverse  the  case.  Suppose  Congress  should  declare  that 
hereafter  the  eagle  should  be  called  a dollar  or  that  the  dollar  should  be 
composed  of  as  many  grains  of  gold  as  the  eagle,  would  a 113’  body  for  a 
moment  contend  that  a contract  for  dollars,  composed  as  now  of  silver, 
should  be  satisfied  by  dollars  composed  of  gold?  I am  confident  that  no 
judge  sitting  on  this  bench,  and,  indeed,  that  no  judge  in  Christendom 
could  be  found,  who  would  sanction  the  monstrous  wrong  bjr  decreeing 
that  the  debtor  could  only  satisfy  his  contract  in  such  case  by  paying  ten 
times  the  value  originally  stipulated.  The  natural  sense  of  right  which 
is  implanted  in  every  mind  would  revolt  from  such  supreme  injustice. 
Yet  there  cannot  be  one  law  for  debtors  and  another  law  for  creditors.  If 
the  contract  can  at  one  time  be  changed  by  congressional  legislation  for 
the  benefit  of  the  debtor,  it  may  at  another  time  be  changed  for  the  bene- 
fit of  the  creditor. 

“For  acts  of  flagrant  injustice  such  as  those  mentioned  there  is  no  au- 
thority in  any  legislative  bodjy  even  though  not  restrained  by  any  ex- 
press constitutional  prohibition.  For  as  there  are  unchangeable  principles 


5 


of  right  and  morality,  without  which  society  would  he  impossible,  and 
men  would  he  but  wild  beasts  preying  upon  each  other,  so  there  are  fun- 
damental principles  of  eternal  justice,  upon  the  existence  of  which  all 
constitutional  government  is  founded,  and  without  which  government 
would  be  an  intolerable  and  hateful  tyranny.” 

Referring  to  the  asserted  power  of  Congress  to  require 
its  own  promises  to  be  received  in  discharge  of  its  pre- 
vious obligations,  the  Judge  said  : 

“ It  follows,  then,  logically,  from  the  doctrine  advanced  by  the  major- 
ity of  the  court  as  to  the  power  of  Congress  over  the  subject  of  legal 
tender,  that  Congress  may  borrow  gold  coin  upon  a pledge  of  the  public 
faith  to  repay  gold  at  the  maturity  of  its  obligations,  and  yet,  in  direct 
disregard  of  its  pledge,  in  open  violation  of  faith,  may  compel  the  lender 
to  take,  in  place  of  the  gold  stipulated,  its  own  promises ; and  that  legis- 
lation of  this  character  would  not  be  in  violation  of  the  Constitution,  but 
in  harmony  with  its  letter  and  spirit. 

“ What  is  this  but  declaring  that  repudiation  by  the  government  of 
the  United  States  of  its  solemn  obligations  would  be  constitutional? 
Whenever  the  fulfillment  of  the  obligation  in  the  manner  stipulated  is 
refused,  and  the  acceptance  of  something  different  from  that  stipulated 
is  enforced  against  the  will  of  the  creditor,  a breach  of  faith  is  committed; 
and  to  the  extent  of  the  difference  of  value  between  the  thing  stipulated 
and  the  thing  which  the  creditor  is  compelled  to  receive,  there  is  repudi- 
ation of  the  original  obligation.  I am  not  willing  to  admit  that  the  Con- 
stitution, the  boast  and  glory  of  our  country,  would  sanction  or  permit 
any  such  legislation.  Repudiation  in  any  form,  or  to  any  extent,  would 
be  dishonor,  and  for  the  commission  of  this  public  crime  no  warrant,  in 
my  judgment,  can  ever  be  found  in  that  instrument.” 

And,  referring  to  the  argument  that  Congress  can  reg- 
ulate the  alloy  of  the  coins  issued  under  its  authority,  and 
has  exercised  its  power  in  that  respect  without  question, 
by  diminishing  in  some  instances  the  actual  quantity  of 
gold  or  silver  they  contain,  the  Judge  said  : 

“Undoubtedly  Congress  can  alter  the  value  of  the  coins  issued  by  its 
authority  by  increasing  or  diminishing,  from  time  to  time,  the  alloy  they 
contain,  just  as  it  may  alter,  at  its  pleasure,  the  denominations  of  the 
several  coins  issued,  but  there  its  power  stops.  It  cannot  make  these  al- 
tered coins  the  equivalent  of  the  coins  in  their  previous  condition  ; and, 
if  the  new  coins  should  retain  the  same  names  as  the  original,  they  would 
only  be  current  at  their  true  value.  Any  declaration  that  they  should 
have  any  other  value  would  be  inoperative  in  fact,  and  a monstrous  dis- 
regard by  Congress  of  its  constitutional  duty.  The  power  to  coin  money, 


8G 


as  already  declared  by  this  court,  is  a great  trust  devolved  upon  Congress, 
carrying  with  it  the  duty  of  creating  and  maintaining  an  uniform  stand- 
ard of  value  throughout  the  Union,  and  it  would  be  a manifest  abuse  of 
this  trust  to  give  to  the  coins  issued  by  its  authority  any  other  than  their 
real  value.  By  debasing  the  coins,  when  once  the  standard  is  fixed,  is 
meant  giving  to  the  coins,  by  their  form  and  impress,  a certificate  of  their 
having  a relation  to  that  standard  different  from  that  which,  in  truth, 
they  possess  ; in  other  words,  giving  to  the  coins  a false  certificate  of  their 
value.  Arbitrary  and  profligate  governments  have  often  resorted  to  this 
miserable  scheme  of  robbery,  which  Mills  designates  as  a shallow  and 
impudent  artifice,  the  ‘ least  covert  of  all  modes  of  knavery,  which  con- 
sists in  calling  a shilling  a pound,  that  a debt  of  one  hundred  pounds 
may  be  cancelled  by  the  payment  of  one  hundred  shillings.’  ” 

The  Judge  concluded  his  opinion  as  follows  : 

“ I know  that  the  measure,  the  validity  of  which  I have  called  in 
question,  was  passed  in  the  midst  of  a gigantic  rebellion,  when  even  the 
bravest  hearts  sometimes  doubted  the  safety  of  the  Republic,  and  that 
the  patriotic  men  who  adopted  it  did  so  under  the  conviction  that  it 
would  increase  the  ability  of  the  government  to  obtain  funds  and  supplies, 
and  thus  advance  the  national  cause.  Were  I to  be  governed  by  my  ap- 
preciation of  tbe  character  of  those  men,  instead  of  my  views  of  the  re- 
quirements of  the  Constitution,  I should  readily  assent  to  the  views  of  the 
majority  of  the  court.  But,  sitting  as  a judicial  officer,  and  bound  to 
compare  every  law  enacted  by  Congress  with  the  greater  law  enacted  by 
the  people,  and  being  unable  to  reconcile  the  measure  in  question  with 
that  fundamental  law,  I cannot  hesitate  to  pronounce  it  as  being,  in  my 
judgment,  unconstitutional  and  void. 

“In  the  discussions  which  have  attended  this  subject  of  legal  tender 
there  has  been  at  times  what  seemed  to  me  to  be  a covert  intimation, 
that  opposition  to  the  measure  in  question  was  the  expression  of  a spirit 
not  altogether  favorable  to  the  cause,  in  the  interest  of  which  that 
measure  was  adopted.  All  such  intimations  I repel  with  all  the  energy  I 
can  express.  I do  not  yield  to  any  one  in  honoring  and  reverencing  the 
noble  and  patriotic  men  who  were  in  the  councils  of  the  nation  during 
the  terrible  struggle  with  the  rebellion.  To  them  belong  the  greatest  of 
all  glories  in  our  history, — that  of  having  saved  the  Union,  and  that  of 
having  emancipated  a race.  For  these  results  they  will  be  remembered 
and  honored  so  long  as  the  English  language  is  spoken  or  read  among 
men.  But  I do  not  admit  that  a blind  approval  of  every  measure  which 
they  may  have  thought  essential  to  put  down  the  rebellion  is  any  evi- 
dence of  loyalty  to  the  country.  The  only  loyalty  which  I can  admit 
cousists  in  obedience  to  the  Constitution  and  laws  made  in  pursuance 
of  it.  It  is  only  by  obedience  that  affection  and  reverence  can  be  shown 
to  a superior  having  a right  to  command.  So  thought  our  great  Master 
when  he  said  to  his  disciples  : 1 If  ye  love  me,  keep  my  commandments.’  ” 


87 


Tiie  Legislative  Power  of  the  Insurgent  States  during 
the  Civil  War,  and  the  extent  to  which  the  Confed- 
erate Government  could  be  regarded  as  a De  Facto 
Government. 

The  States  do  not  derive  their  powers  from  the  general 
government.  Thirteen  of  them  existed  before  that  gov- 
ernment was  formed  ; and  the  others  have  come  under  it 
with  similar  powers  and  rights.  If  there  were  no  States 
there  would  of  course  be  no  such  political  organization  as 
the  United  States.  If  the  Union  were  destroyed  the  States 
as  independent  political  communities  would  remain,  though 
a government  like  that  of  the  Union  would  be  necessary 
to  their  prosperity.  That  government  preserves  peace 
among  them,  thus  ensuring  domestic  tranquillity,  reg- 
ulates commercial  intercourse  between  them,  secures  to 
citizens  of  the  several  States  equality  of  privileges  and 
immunities  in  all  of  them,  and  exercises  control  over 
foreign  affairs  and  matters  of  general  concern,  which  could 
not  be  managed  by  the  States  acting  separately,  except  in 
a few  particulars,  without  great  embarrassment  and  diffi- 
culty. It  is  essential,  therefore,  as  all  must  see,  to  the 
whole  country.  But  as  the  original  States  existed  before 
the  Constitution,  and  the  States  subsequently  formed  have 
been  admitted  into  the  Union  upon  terms  of  equality  with 
them — all  possess  the  attributes  and  powers  of  distinct 
political  communities,  except  as  limited  and  restrained  by 
that  instrument.  When  the  civil  war  broke  out  the  char- 
acter of  the  insurgent  States  as  such  communities  was  not 
changed.  They  retained  and  exercised  the  powers  pre- 
viously possessed,  which  were  essential  to  the  security  of 
persons  and  property,  the  preservation  of  order,  and  the 
due  administration  of  justice.  Their  attempt  to  sever  their 
relations  to  the  government  of  the  Union  and  to  form  a 
confederation  with  a part  only  of  the  States,  and  a new 
central  government  for  themselves,  could  have,  under  the 
Constitution,  no  validity.  To  those  who  regard  that  in- 


88 


strument  as  creating  a perpetual  Union,  to  be  dissolved 
only  by  the  consent  of  the  people  of  the  several  States, 
this  new  confederation  could  be  nothing  more  than  a re- 
bellious organization — treasonable  in  its  designs  and  ac- 
tions— to  be  suppressed,  if  necessary,  by  armed  force.  That 
instrument  prohibits  any  treaty,  alliance,  or  confederation 
between  one  State  and  another,  and  the  new  confederation 
was  in  open  defiance  and  contempt  of  this  prohibition.  It 
also  declares  that  the  Constitution,  and  the  laws  of  the 
United  States  made  in  pursuance  thereof,  shall  be  the  su- 
preme law  of  the  land.  The  new  confederation  denied  this 
supremacy,  repudiated  the  authority  of  the  Constitution  and 
of  the  laws  passed  in  pursuance  thereof,  and  endeavored 
to  maintain  its  position  by  force  of  arms.  The  United 
States  could,  therefore,  only  treat  it,  and  the  government 
created  by  it,  as  the  military  representative  of  the  insur- 
rection against  their  authority.  The  concession  of  bel- 
ligerent rights  gave  to  its  armed  forces  in  the  conduct  of 
the  war  the  position  and  rights  of  parties  engaged  in  law- 
ful warfare.  But  no  further  recognition  was  ever  extended 
to  it.  Its  legislation  was  never  treated  as  valid,  and  when 
its  forces  were  overthrown,  its  whole  organization  dis- 
appeared. 

The  insurgent  States,  however,  were  in  a different  posi- 
tion. They  remained  as  previously  to  the  war,  with  similar 
legislative  powers,  their  acts  being  invalid  only  so  far  as 
they  impaired  or  tended  to  impair  the  supremacy  of  the 
government  of  the  Union  or  the  rights  of  loyal  citizens. 

The  Constitution,  after  delegating  to  the  Congress  of 
the  United  States  certain  enumerated  powers,  declares 
that  it  may  make  any  laws  necessary  or  proper  to  carry  its 
powers  into  execution.  Judge  Field  was  always  a “ Union 
man,”  and  when  the  rebellion  broke  out,  he  never  hesi- 
tated a moment  to  give  his  earnest  support  to  the  govern- 
ment for  its  suppression.  He  had  no  patience  with  the 
doctrine  of  non-coercion,  and  denounced  it  as  the  sugges- 
tion of  treason,  or  the  utterance  of  stupidity.  And  to 


89 


this  day  he  never  refers  to  it  except  with  an  expression 
of  contempt.  In  a charge  to  a grand  jury  at  San  Fran- 
cisco in  1872,  in  alluding  to  the  results  of  the  war,  he  thus 
spoke  of  it  : 

“ That  Avar  has  done  away  forever  with  the  miserable  notion,  which 
extensively  prevailed  at  the  time  of  the  outbreak  of  the  rebellion,  that 
the  general  government,  because  it  was  formed  by  the  people  of  the  sev- 
eral States,  sovereign  in  some  of  their  powers,  should  not  exert  any  co- 
ercion to  enforce  its  laws.  No  one  is  now  willing  to  run  a tilt  against 
common  sense  by  adducing  any  argument  in  support  of  this  absurd  po- 
sition; and  the  war  has  demonstrated  that  the  general  government  pos- 
sesses all  the  power  necessary  to  enforce  obedience  to  its  laws  throughout 
the  limits  of  the  Eepublic.” 

The  views  stated  as  to  the  legislative  powers  of  the  in- 
surgent States,  and  the  character  given  to  the  Confed- 
erate government  as  the  representative  of  the  military 
insurrection,  have  been  sanctioned  by  the  Supreme  Court 
in  many  decisions,  notwithstanding  some  hesitation  and 
some  doubtful  expressions  in  the  early  cases.  These  de- 
cisions deny  all  validity  to  any  legislative  action  of  the 
States  favoring  the  insurrection,  or  against  the  rights  of 
loyal  citizens,  but  they  sustain  all  other  acts  of  ordinary 
legislation ; and  they  treat  the  government  of  the  Confed- 
erate States  as  a wholly  illegal  and  traitorous  combination. 

In  Texas  vs.  "White,  at  the  December  term,  1868,  Chief 
Justice  Chase,  after  observing  that  the  Legislature  of 
Texas,  during  the  war,  constituted  one  of  the  depart- 
ments of  a state  government  established  in  hostility  to 
the  Constitution,  and  could  not  therefore  be  regarded  in 
the  courts  of  the  United  States  as  a lawful  legislature, 
said  that,  as  a department  of  the  government  having  actual 
control  of  the  State,  he  was  of  opinion  that  its  acts,  when 
not  hostile  to  the  United  States,  should  be  regarded  as 
valid.  Speaking  for  the  court,  he  said  ; 

“ It  is  not  necessary  to  attempt  any  exact  definitions  within  which  the 
acts  of  such  a state  government  must  be  treated  as  valid  or  invalid.  It 
may  be  said,  perhaps  with  sufficient  accuracy,  that  acts  necessary  to. 
peace  and  good  order  among  citizens — such,  for  example,  as  acts  sanction- 
ing and  protecting  marriage  and  the  domestic  relations,  governing  the 


90 


course  of  descents,  regulating  the  conveyance  and  transfer  of  property, 
real  and  personal,  and  providing  remedies  for  injuries  to  person  and  es- 
tate, and  other  similar  acts,  which  would  be  valid  if  emanating  from  a 
lawful  government — must  he  regarded,  in  general,  as  valid  when  proceed- 
ing from  an  actual  though  unlawful  government;  and  that  acts  in  fur- 
therance or  support  of  rebellion  against  the  United  States,  or  intended  to 
defeat  the  just  rights  of  citizens,  and  other  acts  of  like  nature,  must,  in 
general,  be  regarded  as  invalid  and  void.” — (7  Wall.,  733.) 

In  Horn  vs.  Lockhart,  before  the  court  at  the  October 
term  of  1873,  these  views  are  reasserted  with  still  greater 
emphasis.  There  a bill  had  been  tiled  by  the  legatees  in 
a will  to  compel  an  executor  in  Alabama  to  account  for 
funds  received  by  him  belonging  to  the  estate  of  his  tes- 
tator, and  to  pay  to  them  their  distributive  shares.  He 
had,  under  a law  of  that  State,  invested  the  funds  in  bonds 
of  the  Confederate  States,  and  the  investment  was  ap- 
proved by  the  decree  of  the  probate  court;  and  the  ques- 
tion was  whether  this  disposition  of  the  moneys  received, 
and  the  decree  of  the  court,  were  a sufficient,  answer  to  the 
suit  of  the  legatees  to  compel  an  accounting.  In  reply 
to  it,  Judge  Field,  speaking  for  the  court,  said  ; 

“ The  bonds  of  the  Confederate  States  were  issued  for  the  avowed 
purpose  of  raising  funds  to  prosecute  the  war  then  waged  by  them 
against  the  government  of  the  United  States.  The  investment  was, 
therefore,  a direct  contribution  to  the  resources  of  the  Confederate  gov- 
ernment; it  was  an  act  giving  aid  and  comfort  to  the  enemies  of  the 
United  States ; and  the  invalidity  of  any  transaction  of  that  kind,  from 
whatever  source  originating,  ought  not  to  be  a debatable  matter  in  the 
courts  of  the  United  States.  No  legislation  of  Alabama,  no  act  of  its 
convention,  no  judgment  of  its  tribunals,  and  no  decree  of  the  Confed- 
erate government  could  make  such  a transaction  lawful. 

“ We  admit  that  the  acts  of  the  several  States  in  their  individual  ca- 
pacities— executive,  judicial,  and  legislative — during  the  war,  so  far  as 
they  did  not  impair  or  tend  to  impair  the  supremacy  of  the  national 
authority,  or  the  just  rights  of  citizens  under  the  Constitution,  are,  in 
general,  to  be  treated  as  valid  and  binding.  The  existence  of  a state  of 
insurrection  and  war  did  not  loosen  the  bonds  of  society,  or  do  away  with 
civil  government  or  the  regular  administration  of  the  law.  Order  was  to 
be  preserved,  police  regulations  maintained,  crime  prosecuted,  property 
protected,  contracts  enforced,  marriages  celebrated,  estates  settled,  and 
the  transfer  and  descent  of  property  regulated  precisely  as  in  time  of 
peace.  No  one,  that  we  are  aware  of,  seriously  questions  the  validity  of 


91 


judicial  or  legislative  acts  in  the  insurrectionary  States  touching  these 
and  kindred  subjects,  where  they  were  not  hostile  in  their  purpose  or 
mode  of  enforcement  to  the  authority  of  the  national  government,  and 
did  not  impair  the  rights  of  citizens  under  the  Constitution.” — -(17  Wall., 
580.) 

In  United  States  vs.  Insurance  Companies,  at  the  Octo- 
ber term  of  1874,  these  views  were  reiterated  and  affirmed, 
the  court  citing-  with  approbation  the  passages  from  t be 
opinions  in  Texas  vs.  White  and  Lockhart  vs.  Horn,  given 
above.  These  corporations,  created  by  the  Legislature  of 
Georgia  during  the  war,  were  held  to  be  lawful  institu- 
tions, capable  of  suing  in  the  federal  courts,  not  being  in 
their  purposes  or  operation  hostile  to  the  Union,  or  in  con- 
flict with  the  Constitution,  hut  creatures  of  ordinary  leg- 
islation. such  as  might  have  been  created  if  there  had  been 
no  war  or  attempted  secession.  In  giving  the  opinion  of 
the  court,  Judge  Strong,  after  making  the  above  and  other 
similar  citations,  said  : 

“ After  these  emphatic  utterances  controversy  upon  this  subject  should 
cease.  All  the  enactments  of  the  de  facto  legislatures  iu  the  insurrec- 
tionary States  during  the  war,  which  were  not  hostile  to  the  Union  or 
to  the  authority  of  the  general  government,  and  which  were  not  in  con- 
flict with  the  Constitution  of  the  United  States,  or  of  the  States,  have 
the  same  validity  as  if  they  had  been  enactments  of  legitimate  legisla- 
tures. Any  other  doctrine  than  this  would  work  great  and  unnecessary 
hardship  upon  the  people  of  those  States,  without  any  corresponding 
benefit  to  the  citizens  of  other  States,  and  without  any  advantage  to  the 
national  government.” — (22  Wall.,  103.  See  also  Sprott  vs.  United  States, 
20  Wall.,  464.) 

The  character  iu  which  the  government  of  the  Confed- 
erate States  was  to  be  regarded,  in  view  of  the  concession 
of  belligerent  rights  to  its  armed  forces,  was  the  subject  of 
frequent  consideration  by  the  Supreme  Court.  In  Thoring- 
ton  vs.  Smith,  at  the  December  term  of  1868,  the  Chief 
Justice,  in  delivering  the  opinion  of  the  court,  spoke  of  the 
different  kinds  of  de  facto  governments,  and  compared  the 
government  of  the  Confederate  States  with  the  govern- 
ment imposed  upon  Castine,in  Maine,  by  the  British  forces 
in  1814,  and  that  imposed  upon  Tampico,  in  Mexico,  by  the 


Americans  in  1846,  and  designated  it  as  a government  of 
paramount  force,  to  which  obedience,  being  a matter  of 
necessity,  became  a duty  for  the  preservation  of  civil  order; 
but  said  that  by  the  government  of  the  United  States  it  bad 
been  regarded,  from  an  early  period  of  the  civil  war  to  its 
close,  as  simply  the  military  representative  of  the  insurrec- 
tion against  their  authority — (7  Wall.,  9.)  But  by  far  the 
most  thorough  and  exhaustive  consideration  of  the  char- 
acter of  the  government  of  the  Confederate  States,  and  its 
relation  to  the  government  of  the  Union,  is  contained  in  the 
opinion  in  Bruffy  vs.  Williams,  decided  at  the  October  term 
of  1877.  In  that  case  the  question  arose  as  to  the  validity  of 
an  act  of  the  Confederate  States,  during  the  war,  confiscating 
a debt  due  from  a citizen  of  Virginia  to  a citizen  of  Penn- 
sylvania. The  former  having  died,  an  action  was  brought 
after  the  war  against  his  administrator  to  recover  the  debt. 
The  defendant  took  the  ground  that  the  enactment  of 
the  Confederate  States  was  that  of  an  independent  nation, 
and  must  be  so  treated.  His  contention  was  substantially 
this  : that  the  Confederate  government,  from  April,  1861, 
until  it  was  overthrown  in  1865,  was  a government  de  facto, 
complete  in  all  its  parts,  exercising  jurisdiction  over  a well- 
defined  territory,  which  included  that  portion  of  Virginia 
where  the  deceased  resided,  and  as  such  de  facto  govern- 
ment it  had  engaged  in  war  with  the  United  States  ; and 
possessed  and  was  justified  in  exercising  within  its  territo- 
rial limits  all  the  rights  of  war  which  belonged  to  an  inde- 
pendent nation,  and  among  them,  that  of  confiscating  debts 
due  by  its  citizens  to  its  enemies. 

In  support  of  this  position  reference  was  made  to  numer- 
ous instances  of  de  facto  governments  which  had  existed 
in  England  and  in  other  parts  of  Europe  and  in  America, 
to  the  doctrines  of  jurists  and  writers  on  public  law  re- 
specting the  powers  of  such  governments,  and  the  validity 
accorded  to  their  acts,  to  the  opinion  of  the  Supreme  Court 
of  the  United  States,  in  Thorington  vs.  Smith  and  in  the 
Prize  Cases,  to  the  concession  of  belligerent  rights  to  the 


93 

Confederate  government,  and  to  the  action  of  the  States 
during  the  revolutionary  war  and  the  period  immediately 
following  it. 

In  reply  to  this  position.  Judge  Field,  in  delivering  the 
opinion  of  the  court  said  as  follows  : 

11  We  do  not  question  the  doctrines  of  public  larv  which  have  been  in- 
voked, nor  their  application  in  proper  cases,  but  it  will  he  found  upon 
examination  that  there  is  an  essential  difference  between  the  government 
of  the  Confederate  States  and  those  de  facto  governments.  The  latter 
are  of  two  kinds.  One  of  them  is  such  as  exists  after  it  has  expelled  the 
regularly  constituted  authorities  from  the  seats  of  power  and  the  public 
offices,  and  established  its  own  functionaries  in  their  places,  so  as  to  repre- 
sent in  fact  the  sovereignty  of  the  nation.  Such  was  the  government  of 
England  under  the  commonwealth  established  upon  the  execution  of  the 
King  and  the  overthrow  of  the  loyalists.  As  far  as  other  nations  are  con- 
cerned such  a government  is  treated  as  in  most  respects  possessing  rightful 
authority:  its  contracts  and  treaties  are  usually  enforced  ; its  acquisitions 
are  retained ; its  legislation  is  in  general  recognized ; and  the  rights  ac- 
quired under  it  are,  with  few  exceptions,  respected  after  the  restoration  of 
the  authorities  which  were  expelled.  All  that  counsel  say  of  de facto  gov- 
ernments is  justly  said  of  a government  of  this  kind.  But  the  Confederate 
government  was  not  of  this  kind.  It  never  represented  the  nation  ; it  never 
expelled  the  public  authorities  from  the  country  ; it  never  entered  into  any 
treaties;  nor  was  it  ever  recognized  as  that  of  an  independent  power.  It 
collected  an  immense  military  force  and  temporarily  expelled  the  author- 
ities of  the  United  States  from  the  territory  over  which  it  exercised  an 
usurped  dominion ; but  in  that  expulsion  the  United  States  never  ac- 
quiesced ; on  the  contrary,  they  immediately  resorted  to  similar  force  to  re- 
gain possession  of  that  territory  and  re-establish  their  authority,  and  they 
continued  to  use  such  force  until  they  succeeded.  It  would  be  useless 
to  comment  upon  the  striking  contrast  between  a government  of  this 
nature,  which  with  all  its  military  strength  never  had  undisputed  posses- 
sion of  power  for  a single  day,  and  a government  like  that  of  the  Com- 
monwealth of  England  under  Parliament  or  Cromwell. 

“The  other  kind  of  de  facto  governments,  to  which  the  doctrines  cited 
relate,  is  such  as  exists  where  a portion  of  the  inhabitants  of  a country 
have  separated  themselves  from  the  parent  state  and  established  an  inde- 
pendent government.  The  validity  of  its  acts,  both  against  the  parent 
state  and  its  citizens  or  subjects,  depends  entirely  upon  its  ultimate  suc- 
cess. If  it  fail  to  establish  itself  permanently,  all  such  acts  perish  with 
it.  If  it  succeed  and  become  recognized,  its  acts  from  the  commencement 
of  its  existence  are  upheld  as  those  of  an  independent  nation.  Such  was 
the  case  of  the  state  governments  under  the  old  confederation  on  their  sep- 
aration from  the  British  Crown.  Having  made  good  their  declaration  of 
independence,  everything  they  did  from  that  date  was  as  valid  as  if  their 


94 


independence  had  been  at  once  acknowledged.  Confiscations,  tlierefove, 
of  enemy’s  property  made  by  them  were  sustained  as  if  made  by  an  inde- 
pendent nation.  Bnt  if  they  had  failed  in  securing  their  independence, 
and  the  authority  of  the  King  had  been  re-established  in  this  country,  no 
one  would  contend  that  their  acts  against  him,  or  his  loyal  subjects,  could 
have  been  upheld  as  resting  upon  any  legal  foundation. 

“ When  a rebellion  becomes  organized  and  attains  such  proportions  as 
to  be  able  to  put  a formidable  military  force  in  the  field,  it  is  usual  for  the 
established  government  to  concede  to  it  some  belligerent  rights.  This 
concession  is  made  in  the  interests  of  humanity,  to  prevent  the  cruelties 
which  would  inevitably  follow  mutual  reprisals  and  retaliations.  But 
belligerent  rights,  as  the  terms  import,  are  rights  which  exist  only  during 
war;  and  to  what  extent  they  shall  be  accorded  to  insurgents  depends 
upon  the  considerations  of  justice,  humanity,  and  policy  controlling  the 
government.  The  rule  stated  by  Yattel,  that  the  justice  of  the  cause  be- 
tween two  enemies  being  by  the  law  of  nations  reputed  to  be  equal,  what- 
soever is  permitted  to  the  one  in  virtue  of  war  is  also  permitted  to  the 
other,  applies  only  to  cases  of  regular  war  between  independent  nations. 
It  has  no  application  to  the  case  of  a war  between  an  established  govern- 
ment and  insurgents  seeking  to  withdraw  themselves  from  its  jurisdiction, 
or  to  overthrow  its  authority.*  The  concession  made  to  the  Confederate 
government  in  its  military  character  was  shown  in  the  treatment  of  cap- 
tives as  prisoners  of  war,  the  exchange  of  prisoners,  the  recognition  of 
flags  of  truce,  the  release  of  officers  on  parole,  and  other  arrangements 
having  a tendency  to  mitigate  the  evils  of  the  contest.  The  concession 
placed  its  soldiers  and  military  officers  in  its  service  on  the  footing  of  those 
engaged  in  lawful  war,  and  exempted  them  from  liability  for  acts  of  legit- 
imate warfare.  But  it  conferred  no  further  immunity  or  any  other  rights. 
It  in  no  respect  condoned  acts  against  the  government  not  committed  by 
armed  force  in  the  military  service  of  the  rebellious  organization.  It  sanc- 
tioned no  hostile  legislation  ; it  gave  validity  to  no  contracts  for  military 
stores;  and  it  impaired  in  no  respect  the  rights  of  loyal  citizens  as  they 
had  existed  at  the  commencement  of  the  hostilities.  Parties  residing  in 
the  insurrectionary  territory,  having  property  in  their  possession  as  trus- 
tees or  bailees  of  loyal  citizens,  may  in  some  instances  have  had  such 
property  taken  from  them  by  force,  and  in  that  event  they  may  perhaps 
be  released  from  liability.  Their  release  will  depend  upon  the  same 
principles  which  control  in  ordinary  cases  of  violence  by  an  unlawful 
combination  too  powerful  to  be  successfully  resisted. 

‘‘But  debts  not  being  tangible  things  subject  to  physical  seizure  and 
removal,  the  debtors  cannot  claim  release  from  liability  to  their  creditors 
by  reason  of  tbe  coerced  payment  of  equivalent  sums  to  an  unlawful 
combination.  The  debts  can  only  be  satisfied  when  paid  to  the  creditors 
to  whom  they  are  due,  or  to  others  by  direction  of  lawful  authority.  Any 


*Halleck’s  Inter.  Law,  cli.  xiv.,  sec.  9. 


95 


sum  which  the  unlawful  combination  may  have  compelled  the  debtors  to 
pay  to  its  agents  on  account  of  debts  to  loyal  citizens  cannot  have  any  ef- 
fect upon  their  obligations  : they  remain  subsisting  and  unimpaired.  The 
concession  of  belligerent  rights  to  the  rebellious  organization  yielded  noth- 
ing to  its  pretensions  of  legality.  If  it  had  succeeded  in  its  contest  it  would 
have  protected  the  debtor  from  further  claim  for  the  debt,  but  as  it  failed 
the  creditor  may  have  recourse  to  the  courts  of  the  country  as  prior  to  the 
rebellion.  It  would  be  a strange  thing,  if  the  nation,  after  succeeding  in 
suppressing  the  rebellion  and  re-establishing  its  authority  over  the  insur- 
rectionary district,  should  by  any  of  its  tribunals  recognize  as  valid  the  at- 
tempt of  the  rebellious  organization  to  confiscate  a debt  due  to  a loyal  cit- 
izen as  a penalty  for  his  loyalty.  Such  a thing  would  be  unprecedented 
in  the  history  of  unsuccessful  rebellions,  and  would  rest  upon  no  just 
principle. 

“ The  immense  power  exercised  by  the  government  of  the  Confederate 
States  for  nearly  four  years,  the  territorj-  over  which  it  extended,  the  vast 
resources  it  wielded,  and  the  millions  who  acknowledged  its  authority,  pre- 
sent an  imposing  spectacle,  well  fitted  to  mislead  the  mind  in  considering 
the  legal  character  of  that  organization.  It  claimed  to  represent  an  inde- 
pendent nation  and  to  possess  sovereign  powers ; and  as  such  to  displace 
the  jurisdiction  and  authority  of  the  United  States  from  nearly  half  of 
their  territory,  and  instead  of  their  laws  to  substitute  and  enforce  those  of 
its  own  enactment.  Its  pretensions  being  resisted,  they  were  submitted  to 
the  arbitrament  of  war.  In  that  contest  the  Confederacy  failed,  and  in  its 
failure  its  pretensions  were  dissipated,  its  armies  scattered,  and  the  whole 
fabric  of  its  government  broken  in  pieces.  The  very  property  it  had 
amassed  passed  to  the  nation.  The  United  States  during  the  whole  con- 
test never  for  one  moment  renounced  their  claim  to  supreme  jurisdiction 
over  the  whole  country,  and  to  the  allegiance  of  every  citizen  of  the  Re- 
public. They  never  acknowledged  in  any  form,  or  through  any  of  their 
departments,  the  lawfulness  of  the  rebellious  organization,  or  the  validity 
of  any  of  its  acts,  except  so  far  as  such  acknowledgment  may  have  arisen 
from  conceding  to  its  armed  forces  in  the  conduct  of  the  war  the  standing 
and  rights  of  those  engaged  in  lawful  warfare.  They  never  recognized  its 
asserted  power  of  rightful  legislation.” 

The  Judge  then  proceeded  to  show  that  there  was  noth- 
ing in  conflict  with  these  views  in  Thorington  vs.  Smith, 
or  in  the  Prize  Cases,  or  in  Wheaton  or  Vattel,  and  then 
added,  that  it  was  unnecessary  to  pursue  the  subject  fur- 
ther; that — 

“ Whatever  de  facto  character  may  be  ascribed  to  the  Confederate  gov- 
ernment consists  solely  in  the  fact,  that  it  maintained  a contest  with  the 
United  States  for  nearly  four  years,  and  dominated  for  that  period  over 


96 


a large  extent  of  territory.  When  its  military  forces  were  overthrown 
it  utterly  perished,  and  with  it  all  its  enactments.” 

lie  concluded  as  follows  : 

“ Whilst  thus  holding  that  there  was  no  validity  in  any  legislation  of  the 
Confederate  States  which  this  court  can  recognize,  it  is  proper  to  observe 
that  the  legislation  of  the  States  stands  on  very  different  grounds.  The 
same  general  form  of  government,  the  same  general  laws  for  the  admin- 
istration of  justice  and  the  protection  of  private  rights,  which  had  ex- 
isted in  the  States  prior  to  the  rebellion,  remained  during  its  continuance 
and  afterwards.  As  far  as  the  acts  of  the  States  did  not  impair  or  tend 
to  impair  the  supremacy  of  the  national  authority  or  the  just  rights  of 
citizens  under  the  Constitution,  they  are,  in  general,  to  be  treated  as 
valid  and  binding.” — (Citing  from  Horn  vs.  Lockhart,  76  U.  S.) 


Protection  from  Military  Arrest  and  Imprisonment  dur- 
ing the  War  of  Citizens  not  in  the  Military  Service, 
in  States  where  the  Civil  Courts  were  open  and  in 
the  Undisturbed  Exercise  of  their  Jurisdiction. 

After  the  decision  of  the  Supreme  jlourt  in  the  Milligan 
case,  at  the  December  term  of  1865,  declaring  military 
commissions  in  the  loyal  States,  for  the  trial  of  citizens 
not  in  the  military  service  or  prisoners  of  war,  to  lie  ille- 
gal, no  attempt  was  made  to  bring  the  decrees  of  such 
irregular  and  unauthorized  tribunals  before  the  court. 
Their  illegality  was  accepted  without  further  contest. 
But  during  the  war  there  were  in  some  instances  arbitrary 
and  oppressive  acts  committed  in  the  loyal  States  by  military 
officers,  particularly  those  tilling  the  positions  of  provost- 
marshals,  for  which  redress  was  sought  by  civil  action.  An 
instance  of  this  kind  was  before  the  Supreme  Court  in 
Beckwith  vs.  Bean,  at  the  October  term  of  1878.  That 
action  was  brought  against  the  provost-marshal  and  assist- 
ant provost-marshal  of  a military  district  embracing  the 
State  of  Vermont,  and  was  for  an  assault  and  battery  upon 
the  plaintiff,  and  his  imprisonment  in  the  state  prison  for 
several  months — from  Xovember,  1864,  to  April,  1865 — 


without  process  of  law  and  under  circumstances  of  great 
cruelty  and  oppression.  It  appeared  from  the  evidence  in 
the  case  that  on  the  lltlx  of  November,  1864,  the  plain- 
tiff, whilst  returning  from  a trip  to  Boston  to  his  home  in 
Canada,  where  he  temporarily  resided,  though,  a citizen  of 
the  United  States,  was  arrested  by  one  of  the  defendants, 
the  assistant  provost-marshal,  without  any  warrant  or  pro- 
cess of  law,  and  detained  until  the  following  day  ; that  he 
was  then  forcibly  taken  by  order  of  the  other  defendant, 
the  provost-marshal,  and  placed  in  the  state  prison  at 
Windsor,  where  he  remained  until  the  26th  of  April,  1865,  a 
period  of  nearly  five  months,  when  he  was  admitted  to  bail 
and  released  from  imprisonment  ; that  during  this  period  he 
was  locked  up  at  night,  and  for  the  first  few  days  in  the  day- 
time also,  in  a narrow  and  scantily  furnished  cell,  being  one 
in  which  convicts  were  confined  at  night  ; that  after  the 
first  few  days  he  was  allowed,  upon  his  complaint  of  the 
coldness  of  the  cell,  to  spend  the  day  in  the  shops  where 
the  convicts  worked,  but  he  was  required  to  go  out  and  to 
return  when  they  did,  and  at  no  time  to  be  out  of  sight  of  a 
keeper,  and  not  to  go  on  the  corridor  or  in  the  yard  for  ex- 
ercise ; that  the  food  offered  to  him  was  the  fare  served  to 
the  convicts,  which  he  could  not  eat,  and  that  afterwards 
he  obtained  his  meals  from  the  keeper’s  table  by  paying 
a small  sum  each  week  ; and  that  during  this  period  no 
complaint  against  him  was  filed  with  any  magistrate  ; and 
that  he  was  simply  held  upon  the  order  of  the  defendants. 

The  excuse  ottered  by  them  for  this  imprisonment  and 
treatment  of  the  plaintiff  was,  that  they  suspected  that  he 
had  aided  or  been  privy  to  the  desertion  from  the  army  of 
two  substitutes,  who  had  been  furnished  upon  a contract 
with  a substitute  broker,  and  for  whom  the  latter  had  paid 
81,200,  of  which  sum  8800  had  been  received  by  the 
plaintiff  and  two  others.  Suspecting  the  plaintiff,  the 
defendants  determined  to  hold  him  in  the  state  prison 
until  they  should  coerce  him  to  pay  not  merely  what 
he  had  received,  but  what  his  supposed  confederates 
7 


98 


had  received  also.  After  he  had  been  in  the  state  prison 
for  a few  days,  the  provost-marshal  called  upon  him, 
and  verbally  informed  him  that  he  was  charged  with 
aiding  or  being  privy  to  the  desertion  of  the  substitutes, 
but  that  he  would  be  discharged  on  payment  of  the  $800, 
and  $25  additional  for  expenses.  The  plaintiff  protested 
that  he  was  innocent  of  the  charge  and  demanded  a trial. 
He  was  told  in  reply  that  “ he  could  not  have  a trial,  and 
could  not  get  one,”  but  that  his  case  would  be  reported  to 
the  officer’s  superiors. 

During  his  imprisonment  he  made  constant  efforts  to 
obtain  a trial,  or  release  on  bail  which  he  was  able  and 
willing  to  furnish.  But  no  trial  was  allowed  him,  and  not 
until  intercession  was  made  on  his  behalf  at  'Washington 
by  a member  of  Congress  was  lie  permitted  to  give  bail 
and  be  discharged.  When  the  grand  jury  of  the  United 
States  court  subsequently  met  in  Vermont  they  found  no 
cause  for  prosecution  against  him,  although  the  provost- 
marshal  made  a statement  of  the  case  to  them. 

At  the  time  of  his  arrest  and  during  his  imprisonment 
there  was  no  rebellion  in  the  State  of  Vermont  against 
the  laws  and  government  of  the  United  States,  nor  were 
there  any  military  operations  carried  on  within  its  limits. 
The  courts  of  justice,  both  federal  and  state,  were  open  and 
in  the  full  exercise  of  their  jurisdiction;  and  the  plaintiff’ 
was  not  in  the  military  service  or  in  any  way  connected 
with  such  service;  and  for  the  offence  of  which  he  was  sus- 
pected, or  for  any  other  offence,  could  have  been  brought 
before  them  on  any  day  of  the  year.  By  his  imprison- 
ment, and  the  report  that  he  was  in  the  state  prison,  his 
business  was  ruined,  his  personal  property  and  furniture 
were  seized  by  creditors  and  sacrificed  at  sheriff’s  sale, 
and  his  wife  was  compelled  to  leave  his  home  and  return 
to  her  friends  in  Vermont. 

On  the  trial  of  the  action,  the  defendants  relied  for  their 
defence  upon  the  fourth  section  of  the  act  of  Congress  of 
March  3d,  1863,  “relating  to  habeas  corpus,  and  regulating 


99 


judicial  proceedings  in  certain  cases;”  and  upon  the  act  of 
March  2d,  1867,  to  declare  valid  and  conclusive  certain 
proclamations  of  the  President,  and  acts  done  in  pursuance 
thereof,  or  of  his  orders  in  the  suppression  of  the  late  re- 
bellion ; contending  that  under  them  the  defendants  were 
to  be  presumed  to  have  acted  by  the  orders  of  the  Presi- 
dent, and  that  they  were  thereby  justified  for  the  matters 
complained  of.  And  if  they  were  not  thus  justified,  then 
they  sought  to  give  in  evidence  in  mitigation  of  damages 
the  testimony  of  certain  parties,  which  was  discovered 
after  the  arrest  and  imprisonment  of  the  plaintiff,  tending 
to  establish  facts,  which,  if  known  at  that  time,  would  have 
justified,  to  some  extent,  their  suspicions  as  to  his  com- 
plicity in  the  escape  of  the  substitutes.  The  court  below, 
in  refusing  to  give  certain  instructions  asked,  held  that 
the  defendants  were  not  justified  under  the  acts  of  Con- 
gress and  the  proclamations  of  the  President  mentioned. 
It  also  held  that  evidence  of  the  possible  guilt  of  the 
plaintiff,  discovered  after  the  commission  of  the  grievances 
complained  of,  was  inadmissible  in  mitigation  of  damages. 

The  plaintiff  accordingly  obtained  a verdict  and  judg- 
ment for  $15,000  damages,  and  the  case  was  carried  to  the 
Supreme  Court.  There  the  Attorney-General  appeared 
for  the  military  officers,  and  contended,  substantially,  as 
follows  : 

1st.  That  the  defendants  were  to  he  presumed  to  have 
acted,  in  the  arrest  and  imprisonment  of  the  plaintiff,  by 
the  orders  of  the  President;  and  that  by  the  acts  of  Con- 
gress they  were  justified  for  the  matters  complained  of. 

2d.  That  the  evidence  of  the  possible  guilt  of  the  plain- 
tiff, discovered  after  the  commission  of  the  grievances, 
was  admissible  in  mitigation  of  damages. 

The  first  proposition  was  not  passed  upon,  the  court  ob- 
serving that  the  instruction  requested  ignored  the  evidence 
introduced,  that  the  defendants  had,  under  circumstances 
of  oppression  and  wantonness,  and  by  improper  and 
fraudulent  representations,  procured  their  superior  officers 


100 


“ to  continue  the  imprisonment  longer  than  necessary,  and 
prevented  them  from  having  a speedy  trial  ” for  the  offence 
charged;  and  on  that  ground,  and  not  on  the  ground  that 
the  acts  of  Congress  justifying  the  conduct  of  the  defend- 
ants were  invalid,  or  that  the  orders  of  the  President,  if 
issued,  would,  have  afforded  no  justification  to  them,  the 
court  overruled  the  objection  to  the  ruling  of  the  court 
below.  But  the  second  proposition  the  court  sustained, 
and,  for  the  refusal  of  the  court  below  to  admit  the  subse- 
quently discovered  evidence,  reversed  the  judgment  and 
ordered  a new  trial. 

From  this  decision  Judges  Clifford  and  Field  dissented, 
Judge  Field  giving  an  elaborate  dissenting  opinion,  in 
which  the  invalidity  of  the  acts  of  Congress,  and  of  any 
orders  of  the  President,  if  issued,  to  justify  the  conduct 
of  the  defendants,  is  conclusively  shown.  The  subject  is 
so  important,  and  is  so  fully  considered,  that  no  apology  is 
necessary  for  extended  citations  from  the  opinion.  Both 
propositions  of  the  Attorney-General  were  discussed  at 
length. 

Upon  the  first  proposition  the  Judge,  after  citing  the 
acts  of  Congress,  said  as  follows  : 

“ These  statutes,  as  is  apparent  on  their  face,  extend  only  to  acts  done 
in  compliance  with  express  orders  or  proclamations  of  the  President. 
They  do  not  cover  acts  done  by  persons  upon  their  own  will  and  discre- 
tion, who  may  have  been  at  the  time  in  the  service  of  the  government, 
simply  because  they  were  under  the  general  direction  of  the  President  as 
commander-in-chief.  They  were  not  intended  to  protect  against  judicial 
inquiry  and  redress  every  act  of  a surbordinate  in  the  military  service  in 
suppressing  or  punishing  what  he  may  have  regarded  as  a disloyal  practice, 
no  matter  how  flagrant  the  outrage  he  may  have  thus  committed  against 
life,  liberty,  or  property. 

“ It  is  not  pretended  that  any  proof  was  produced  that  the  arrest  and 
imprisonment  of  the  plaintilf  were  made  under  any  express  order  or 
proclamation  of  the  President ; but  it  is  contended  by  the  Attorney- 
General,  that  trader  the  last  clause  of  the  act  of  1867  it  is  to  be  presumed 
that  their  action  [the  defendants’]  was  authorized  by  the  President,  and 
that  they  are  thus  relieved  from  accountability  for  it. 

“ The  court  below  held,  that  assuming  the  construction  placed  by  the 
Attorney-General  upon  the  statute  to  be  correct,  and  that  from  the  com- 


101 


mission  of  the  act  the  presumption  arose  that  it  was  authorized  by  the 
President — the  act  thus  presumptively  establishing  its  own  validity — the 
presumption  in  this  case  was  repelled,  inasmuch  as  it  appeared  in  evi- 
dence by  whose  direction  the  orders  were  issued  under  which  the  plain- 
tiff was  arrested  and  imprisoned.  It  appeared  that  they  never  originated 
with  or  had  the  sanction  of  the  President. 

“ If,  however,  the  court  below  erred  in  this  respect,  there  is  another  and 
a conclusive  answer  to  the  defence — one  which  renders  futile  and  abortive 
all  attempts  to  justify  the  action  of  the  defendants  under  any  presumed 
orders  of  the  President — and  that  is,  that  it  was  not  within  the  compe- 
tency of  the  President  or  of  Congress  to  authorize  or  approve  the  acts  here 
complained  of,  so  as  to  shield  the  perpetrators  from  responsibility. 

“Persons  engaged  in  the  military  service  of  the  United  States  are,  of 
course,  subject  to  what  is  termed  military  law  ; that  is,  to  those  rules  and 
regulations  which  Congress  has  provided  for  the  government  of  the  army 
and  the  punishment  of  offences  in  it.  Congress  possesses  authority  un- 
der the  Constitution  to  prescribe  the  tribunals,  as  well  as  the  manner  in 
which  otfenders  against  the  discipline  of  the  army  and  the  laws  for  the 
protection  of  its  men  and  officers  shall  be  summarly  tried  and  punished  ; 
and  to  the  jurisdiction  thus  created,  all  persons  in  the  military  service 
are  amenable.  But  that  jurisdiction  does  not  extend  to  persons  not  in 
the  military  service,  who  are  citizens  of  States  where  the  civil  courts  are 
open. 

“ It  may  be  true,  also,  that  on  the  actual  theatre  of  military  operations, 
what  is  termed  martial  law,  but  which  would  be  better  called  martial 
rule,  for  it  is  little  else  than  the  will  of  the  commanding  general,  applies 
to  all  persons,  whether  in  the  military  service  or  civilians.  It  may  be  true 
that  no  one,  whatever  his  station  or  occupation,  can  there  interfere  with  or 
obstruct  any  of  the  measures  deemed  essential  for  the  success  of  the  army, 
without  subjecting  himself  to  immediate  arrest  and  summary  punishment. 
The  ordinary  laws  of  the  land  are  there  superseded  by  the  laws  of  war.  The 
jurisdiction  of  the  civil  magistrate  is  there  suspended,  and  military  au- 
thority and  force  are  substituted.  The  success  of  the  army  is  the  controll- 
ing consideration,  and  to  that  everything  else  is  required  to  bend.  To 
secure  that  success,  persons  may  be  arrested  and  confined,  and  property 
taken  and  used  or  destroyed  at  the  command  of  the  general,  he  being  re- 
sponsible only  to  his  superiors  for  an  abuse  of  his  authority.  His  orders, 
from  the  very  necessity  of  the  case,  there  constitute  legal  justification  for 
any  action  of  his  officers  and  men.  This  martial  rule — in  other  words, 
this  will  of  the  commanding  general,  except  in  the  country  of  the  enemy 
occupied  and  dominated  by  the  army — is  limited  to  the  field  of  military 
operations.  In  a country  not  hostile,  at  a distance  from  the  movements 
of  the  army,  where  they  cannot  be  immediately  and  directly  interfered 
with,  and  the  courts  are  open,  it  has  no  existence. 

“ The  doctrine  sometimes  advanced  by  men,  with  more  zeal  than  wis- 
dom, that  whenever  war  exists  in  one  part  of  the  country,  the  constitu- 


102 


tional  guaranties  of  personal  liberty,  and  of  the  rights  of  property,  are 
suspended  everywhere,  has  no  foundation  in  the  principles  of  the  com- 
mon law,  the  teachings  of  our  ancestors,  or  the  language  of  the  Constitu- 
tion, and  is  at  variance  with  every  just  notion  of  a free  government. 
Our  system  of  civil  polity  is  not  such  a rickety  and  ill-jointed  structure, 
that  when  one  part  is  disturbed  the  whole  is  thrown  into  confusion  and 
jostled  to  its  foundation.  The  fact  that  rebellion  existed  in  one  portion 
of  the  country  could  not  have  the  eftect  of  superseding  or  suspending 
the  laws  and  Constitution  in  a loyal  portion  widely  separated  from  it. 
The  war  in  the  Southern  States  did  not  disturb  Vermont  from  her  con- 
stitutional propriety.  She  did  not  assent  to  the  theory  that  war  and  dis- 
turbance elsewhere  could  destroy  the  security  given  by  her  laws  and 
government.  The  same  juridical  institutions,  and  the  same  constitu- 
tional guaranties  for  the  protection  of  the  personal  liberty  of  the  citizen, 
with  all  the  means  for  their  enforcement,  remained  there  as  completely  as 
before  ; and  the  Constitution  and  laws  of  the  United  States  were  as  capa- 
ble of  enforcement  in  all  their  vigor  in  that  State  during  the  war  as  at 
any  time  before  or  since.  The  arrest  and  imprisonment  of  the  plaintiff, 
even  if  made  by  direct  order  of  the  President,  were,  therefor,  in  plain 
violation  of  the  fifth  constitutional  amendment,  which  declares  that  no 
person  shall  be  deprived  of  his  liberty  without  due  process  of  law.  No 
mere  order  or  proclamation  of  the  President  for  the  arrest  and  imprison- 
ment of  a person  not  in  the  military  service,  in  a State  removed  from  the 
scene  of  actual  hostilities,  where  the  courts  are  open  and  in  the  unob- 
structed exercise  of  their  jurisdiction,  can  constitute  due  process  of  law  ; 
nor  can  it  be  made  such  by  any  act  of  Congress.  Those  terms,  as  is 
known  to  every  one,  were  originally  used  to  express  what  was  meant  by 
the  terms  ‘the  law  of  the  land  ’ in  Magna  Charta,  and  had  become  syn- 
onymous with  them.  They  were  intended,  as  said  by  this  court,  ‘to  se- 
cure the  individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  established  principles  of  private  right  and  dis- 
tributive justice.’*  They  were  designed  to  prevent  the  government  from 
depriving  any  individual  of  his  rights  except  by  due  course  of  legal  pro- 
ceedings, according  to  those  rules  and  principles  established  in  our  sys- 
tems of  jurisprudence  for  the  protection  and  enforcement  of  the  rights  of 
all  persons. 

“ To  me,  therefore,  it  is  a marvel,  that  in  this  country,  under  a Constitu- 
tion ordained  by  men  who  were  conversant  with  the  principles  of  Magna 
Charta,  and  claimed  them  as  their  birthright — a Constitution  which  de- 
clares in  its  preamble  that  it  is  established  ‘ to  secure  the  blessings  of  lib- 
erty to  ourselves  and  our  posterity  ’ — it  could  ever  be  contended  that  an 
order  of  the  Executive,  issued  at  his  will,  for  the  arrest  and  imprisonment 
of  a citizen,  where  the  courts  are  open  and  in  the  full  exercise  of  their 
jurisdiction,  is  due  process  of  law,  or  could  ever  be  made  such  by  an  act  of 


*Bank  of  Columbia  vs.  Okely,  4 Wheat.,  235. 


103 


Congress.  I certainly  never  supposed  that  such  a proposition  could  be  se- 
riously asserted  before  the  highest  tribunal  of  the  Republic  by  its  chief 
legal  officer.  I had  supposed  that  we  could  justly  claim  that  iu  America, 
under  our  republican  government,  the  personal  liberty  of  the  citizen  was 
greater  and  better  guarded  than  that  of  the  subject  in  England.  It  is 
only  the  extraordinary  claim  made  by  the  counsel  of  the  government  in 
this  case  which  justifies  any  argument  iu  support  of  principles  so  funda- 
mental and  heretofore  so  universally  recognized.  It  may  be  necessary  at 
times  with  respect  to  them,  as  it  is  necessary  at  times  with  respect  to  ad- 
mitted principles  of  morality,  to  re-state  them  in  order  to  rescue  them 
from  the  forgetfulness  caused  by  their  universal  admission. 

" The  assertion  that  the  power  of  the  government  to  carry  on  the  war 
and  suppress  the  rebellion,  would  have  been  crippled  and  its  efficiency 
impaired,  if  it  could  not  have  authorized  the  arrest  of  persons  and  their 
detention  without  examination  or  trial,  on  suspicion  of  their  complicity 
with  the  enemy,  or  of  disloyal  practices,  rests  upon  no  foundation  whatever, 
so  far  as  Vermont  was  concerned.  There  was  no  invasion  or  insurrection 
there,  nor  any  disturbance  which  obstructed  the  regular  administration  of 
justice.  A claim  to  exemption  from  the  restraints  of  law  is  always  made 
in  support  of  arbitrary  power,  whenever  uuforeseen  exigencies  arise  in  the 
affairs  of  government.  It  is  inconvenient ; it  causes  delay ; it  takes  time 
to  furnish  to  committing  magistrates  evidence  which,  in  a country  where 
personal  liberty  is  valued  and  guarded  by  constitutional  guaranties, 
would  justify  the  detention  of  the  suspected  ; and,  therefore,  in  such  ex- 
igencies, say  the  advocates  of  the  exercise  of  arbitrary  power,  the  evi- 
dence should  not  be  required.  A doctrine  more  dangerous  than  this  to 
free  institutions  could  not  be  suggested  by  the  wit  of  man.  The  proceed- 
ings required  by  the  general  law  for  the  arrest  and  detention  of  a party 
for  a public  offence — the  charge  under  oath,  the  examination  of  witn esses 
in  the  presence  of  the  accused,  with  the  privilege  of  cross-examination, 
and  of  producing  testimony  iu  his  favor,  creating  the  objectionable  de- 
lays— constitute  the  shield  and  safeguard  of  the  honest  and  loyal  citizen. 
They  were  designed  not  merely  to  insure  punishment  to  the  guilty,  but 
to  insure  protection  to  the  innocent,  and  without  them  every  one  would 
hold  his  liberty  at  the  mercy  of  the  government.  ‘ All  the  ancient,  hon- 
est, juridical  principles  and  institutions  of  England,’  says  Burke — and  it 
is  our  glory  that  we  inherit  them — ‘ are  so  many  clogs  to  check  and  retard 
the  headlong  course  of  violence  and  oppression.  They  were  invented  for 
this  one  good  purpose,  that  what  was  not  just  should  not  be  convenient.’  * 
Whoever,  therefore,  favors  their  subversion  or  suspension,  except  when  in 
the  presence  of  actual  invasion  or  insurrection  the  laws  are  silent,  is  con- 
sciously or  unconsciously  an  enemy  to  the  Republic. 

“ If  neither  the  order  of  the  President  nor  the  act  of  Congress  could 
suspend,  in  a State  where  war  was  not  actually  waged,  any  of  the  guar- 


* Letter  to  the  Sheriffs  of  Bristol. 


104 


anties  of  the  Constitution  intended  for  the  protection  of  the  plaintiff 
from  unlawful  arrest  and  imprisonment,  neither  could  they  shield  the  de- 
fendants from  responsibility  in  disregarding  them.  Protection  against 
the  deprivation  of  liberty  and  property  would  be  defeated  if  remedies  for 
redress,  where  such  deprivation  was  made,  could  be  denied.” 

In  answer  to  the  second  proposition  of  the  Attorney- 
General,  that  evidence  of  the  possible  guilt  of  the  plain- 
tiff discovered  after  the  commission  of  the  grievances  com- 
plained of,  was  admissible  in  mitigation  of  damages,  the 
Judge  said  as  follows  : 

“ As  facts  not  known  at  that  time  [when  the  grievances  were  com- 
mitted] could  not  have  influenced  the  conduct  of  the  defendants,  it  is 
difficult  to  comprehend  how  proof  of  those  facts  could  be  received  to 
show  the  motives — of  malice  or  good  faith — with  which  they  then  acted. 

“Independently  of  this  consideration,  it  seems  to  me,  that  the  evidence 
of  the  guilt  or  innocence  of  the  plaintiff  was  entirely  immaterial.  Assum- 
ing that  he  was  guilty  of  the  complicity  alleged — tha!  he  had  admitted 
his  guilt  to  the  defendants — that  circumstance  would  not  have  justified 
their  conduct  in  the  slightest  degree.  They  would  have  been  equally 
bound  upon  that  assumption,  as  they  were  in  fact  bound — no  more  and 
no  less — to  take  the  plaintiff  before  the  proper  magistrate  to  be  proceeded 
against  according  to  law.  To  keep  him  for  nearly  six  months  in  the 
state  prison  among  convicts,  without  taking  him  before  the  proper  officer 
to  be  held  to  bail  or  brought  to  trial,  was  a gross  outrage  upon  his  rights, 
whether  he  were  guilty  or  innocent.  There  were  magistrates  in  every 
county  of  the  State  competent  to  act  upon  the  charge,  and  the  district  at- 
torney was  ready  to  take  control  of  all  cases  against  the  laws  of  the 
United  States  and  prosecute  them.  The  defendants  not  only  omitted 
this  plain,  imperative  duty,  but  detained  the  plaintiff  in  prison,  not  with 
a view  to  punish  him  for  the  offence  of  which  they  suspected  him  to  be 
guilty,  but  to  coerce  from  him  payment  of  money  alleged  to  be  due  by  him 
and  others  to  a substitute  broker.  Where  is  the  law  or  reason  for  allow- 
ing one,  who  by  force  holds  another  in  confinement  in  order  to  extort  the 
payment  of  money,  to  show  in  extenuation  of  his  conduct  that  the  man 
had  been  guilty  of  some  offence  against  the  law  ? The  answer  in  all  such 
cases  should  be,  that  the  law'  attaches  the  proper  penalties  to  its  viola- 
tion, and  appoints  the  ministers  by  whom  those  penalties  are  to  be  en- 
forced ; and  whenever  they  can  act,  whoever  usurps  their  authority  and 
attempts  to  punish  supposed  offenders,  in  any  other  mode  than  that  pro- 
vided by  law,  is  himself  a criminal.  For,  as  it  was  said  by  a distin- 
guished statesman  and  jurist  of  England,  when  the  laws  can  act,  ‘every 
other  mode  of  punishing  supposed  crimes  is  itself  an  enormous  crime.’ 

“The  doctrine  announced  by  the  decision  of  the  court  in  this  case  is 
nothing  less  than  this:  that  a gross  outrage  upon  the  rights  of  a person 


105 


may  be  extenuated  or  excused  by  proof  that  the  outraged  party  had  him- 
self been  guilty  of  some  crime,  or,  at  least,  that  the  perpetrators  of  the 
outrage  had  reason  to  suspect  that  he  had.  This  doctrine  is  pregnant 
■with  evil.  I know  not  why,  under  it.  the  violence  of  mobs,  excited 
against  guilty  or  suspected  parties,  may  not  find  extenuation.  Let  such 
a doctrine  be  once  admitted,  and  a greater  blow  will  be  dealt  to  personal 

security  than  any  given  to-it  for  a century. 

“It  will  appear  from  an  examination  of  the  adjudged  cases,  as  it  must 
on  principle,  that  when  illegal  measures  have  been  taken  to  redress  pri- 
vate wrongs,  or  to  punish  for  olfences  against  the  public,  it  is  inadmissi- 
ble to  prove,  in  mitigation  of  actual  or  exemplary  damages,  that  the 
party  injured  was  guilty  of  the  offence  or  misconduct  constituting  the 
provocation  to  the  illegal  measures,  except  where  the  provocation  is  of  a 
personal  character  calculated  to  excite  passion,  and  so  recent  as  to  create 
the  presumption  that  the  acts  complained  of  were  committed  under  the 

influence  of  the  passion  thus  excited. They  are  founded  upon  the 

plain  principle,  that  no  one  can  be  allowed  to  undertake  the  punishment 
of  wrongdoers  according  to  his  own  notions;  that  the  administration  of 
punitive  justice  for  all  offences  is  confided  by  the  law  to  certain  public 
officers,  and  whoever  assumes  their  functions  without  being  authorized, 
usurps  the  prerogative  of  sovereign  power  and  becomes  himself  amena- 
ble to  punishment.  He  shall  not  be  permitted  to  set  up  the  real  or  sup- 
posed offences  of  others  to  justify  his  own  wrong.” 


Protection  to  Officers  and  Soldiers  of  the  Army  of 
the  United  States  in  the  Enemy’s  Country  during 
the  War. 

In  the  prosecution  of  the  late  war  the  armies  of  the 
United  States  were,  as  a matter  of  course,  sent  into  the 
States  in  insurrection.  The  destruction  which  necessarily 
attended  their  march,  together  with  acts  of  violence  of 
individual  soldiers,  which  no  discipline  could  wholly  pre- 
vent, produced  the  natural  result — great  bitterness  and 
hostility  on  the  part  of  the  inhabitants  of  the  invaded 
country.  With  the  close  of  the  war  this  feeling  did  not 
entirely  cease,  and  where  a crime  had  been  committed  the 
whole  community  would  naturally  desire  to  have  its  per- 
petrator punished.  Where  a personal  wrong  had  been 
suffered,  or  a wanton  injury  to  private  property  com- 
mitted, the  sufferer  would  naturally  consider  the  possi- 


106 


bility  of  redress  in  the  courts.  Hence  criminal  prosecu- 
tions were  in  many  instances  begun  against  parties  who 
had  been  in  the  federal  armies  for  alleged  offences  during 
the  war,  and  numerous  private  suits  were  brought  for  in- 
juries to  persons  and  property.  Some  of  these  found  their 
way  to  the  Supreme  Court,  whese  decisions  were  rendered 
extending  protection  to  the  officers  and  soldiers  of  the 
army  against  prosecution  in  the  tribunals  of  the  enemy’s 
country  for  offences  or  injuries  committed  there  by  them 
during  the  war. 

The  first  of  these  cases  was  that  of  Coleman  from  Ten- 
nessee, which  was  before  the  court  at  the  October  term  of 
1878.  Coleman  was  indicted  in  October,  1874,  in  one  of 
the  district  courts  of  Tennessee  for  the  murder  of  a young 
woman  in  March,  1865.  To  the  indictment  he  pleaded 
not  guilty,  and  a former  conviction  for  the  same  offence 
by  a general  court-martial  regularly  convened  for  his  trial 
at  Knoxville,  Tennessee,  on  the  27th  of  March,  1865,  the 
United  States  at  that  time,  and  when  the  offence  was  com- 
mitted, occupying  with  their  armies  East  Tennessee  as  a 
military  district,  and  the  defendant  being  a regular  soldier 
in  their  military  service,  subject  to  the  articles  of  war, 
military  orders,  and  such  military  laws  as  were  there  in 
force  by  their  authority,  alleging  that  he  was  arraigned 
by  that  tribunal  upon  a charge  of  murder,  in  having  killed 
the  same  person  mentioned  in  the  indictment,  and  was 
afterwards,  on  the  9th  of  May,  1865,  tried  and  convicted 
of  the  offence  and  sentenced  to  death  by  hanging,  and 
that  said  sentence  was  still  standing  as  the  judgment  of 
the  court-martial,  approved  as  required  by  law  in  such 
cases,  without  any  other  or  further  action  thereon.  He, 
therefore,  prayed  that  the  indictment  might  be  quashed. 

The  local  court  held  this  plea  bad  on  the  ground,  among 
others,  that  the  defendant’s  conviction  of  the  offence 
charged  by  a court-martial,  under  the  laws  of  the  United 
States,  on  the  9th  of  May,  1865,  was  not  a bar  to  the  in- 
dictment for  the  same  offence;  because  by  the  murder 


107 


alleged  he  was  also  guilty  of  an  offence  against  the  laws 
of  Tennessee.  He  was  thereupon  put  upon  his  trial  in 
that  court,  convicted  of  murder,  and  sentenced  to  death. 
On  appeal  to  the  Supreme  Court  of  the  State  the  judgment 
was  affirmed,  and  the  case  was  taken  to  the  Supreme 
Court  of  the  United  States,  It  was  there  argued  as  though 
its  determination  depended  upon  the  construction  given 
to  the  30th  section  of  the  act  of  Congress  of  March  3d 
1863,  to  enroll  and  call  out  the  national  forces,  the  defend- 
ant’s counsel  contending  that  the  section  vested  in  general 
courts-martial  and  military  commissions  the  right  to  pun- 
ish for  the  offences  designated  therein,  when  committed 
in  time  of  war,  by  persons  in  the  military  service  of  the 
United  States  and  subject  to  the  articles  of  war,  to  the 
exclusion  of  jurisdiction  over  them  by  the  state  courts. 
That  section  enacted:  “ That  in  time  of  war,  insurrection, 
or  rebellion,  murder,  assault  and  battery  with  an  intent  to 
kill,  manslaughter,  mayhem,  wounding  by  shooting  or 
stabbing  with  an  intent  to  commit  murder,  robbery,  arson, 
burglary,  rape,  assault  and  battery  with  an  intent  to  com- 
mit rape,  and  larceny,  shall  be  punishable  by  the  sentence 
of  a general  court-martial  or  military  commission,  when 
committed  by  persons  who  are  in  the  military  service  of 
the  United  States,  and  subject  to  the  articles  of  war;  and 
the  punishment  for  such  offences  shall  never  be  less  than 
those  inflicted  by  the  laws  of  the  State,  territory,  or  district 
in  which  they  may  have  been  committed.”*  But  in  de- 
livering the  opinion  of  the  court,  Judge  Field  replied  as 
follows  : 

“ The  section  is  part  of  an  act  containing  numerous  provisions  for  the 
enrollment  of  the  national  forces,  designating  who  shall  constitute  such 
forces ; who  shall  be  exempt  from  military  service ; when  they  shall  be 
drafted  for  service  ; when  substitutes  may  be  allowed  ; how  deserters  and 
spies  and  persons  resisting  the  draft  shall  be  punished  ; and  many  other 
particulars,  having  for  their  object  to  secure  a large  force  to  carry  on  the 
then  existing  war,  and  to  give  efficiency  to  it  when  called  into  service. 
It  was  enacted  not  merely  to  insure  order  and  discipline  among  the  men 


* 12  U.  S.  Stats.,  p.  736. 


108 


composing  those  forces,  but  to  protect  citizens  not  in  the  military  service 
from  the  violence  of  soldiers.  It  is  a matter  well  known  that  the  march 
even  of  an  army  not  hostile  is  often  accompanied  with  acts  of  violence  and 
pillage  by  straggling  parties  of  soldiers,  which  the  most  rigid  discipline 
is  hardly  able  to  prevent.  The  offences  mentioned  are  those  of  most 
common  occurrence,  and  the  swift  and  summary  justice  of  a military 
court  was  deemed  necessary  to  restrain  their  commission. 

“But  the  section  does  not  make  the  jurisdiction  of  the  military  tribu- 
nals exclusive  of  that  of  the  state  courts.  It  does  not  declare  that  soldiers 
committing  the  offences  named  shall  not  be  amenable  to  punishment  by 
the  state  courts.  It  simply  declares  that  the  offences  shall  he  ‘ punishable,’ 
not  that  they  shall  be  punished  by  the  military  courts ; and  this  is  merely 
saying  that  they  may  be  thus  punished. 

“ Previous  to  its  enactment  the  offences  designated  were  punishable 
by  the  state  courts,  and  persons  in  the  military  service  who  committed 
them  were  delivered  over  to  those  courts  for  trial ; and  it  contains  no 
words  indicating  an  intention  on  the  part  of  Congress  to  take  from  them 
the  jurisdiction  in  this  respect  which  they  had  always  exercised.  With 
the  known  hostility  of  the  American  people  to  any  interference  by  the 
military  with  the  regular  administration  of  justice  in  the  civil  courts,  no 
such  intention  should  be  ascribed  to  Congress  in  the  absence  of  clear  and 
direct  language  to  that  effect. 

“ We  do  not  mean  to  intimate  that  it  was  not  within  the  competency 
of  Congress  to  confer  exclusive  jurisdiction  upon  military  courts  over 
offences  committed  by  persons  in  the  military  service  of  the  United 
States.  As  Congress  is  expressly  authorized  by  the  Constitution  ‘ to  raise 
and  support  armies,’  and  ‘ to  make  rules  for  the  government  and  regu- 
lation of  the  land  and  naval  forces,’  its  control  over  the  whole  subject  of 
the  formation,  organization,  and  government  of  the  national  armies,  in- 
cluding therein  the  punishment  of  offences  committed  by  persons  in  the 
military  service,  would  seem  to  be  plenary.  All  we  now  affirm  is  that 
by  the  law  to  which  we  are  referred,  the  30th  section  of  the  enrollment 
act,  no  such  exclusive  jurisdiction  is  vested  in  the  military  tribunals 
mentioned.  No  public  policy  would  have  been  subserved  by  investing 
them  with  such  jurisdiction,  and  many  reasons  may  be  suggested  against 
it.  Persons  in  the  military  service  could  not  have  been  taken  from  the 
army  by  process  of  the  state  courts  without  the  consent  of  the  military 
authorities;  and,  therefore,  no  impairment  of  its  efficiency  could  arise 
from  the  retention  of  jurisdiction  by  the  state  courts  to  try  the  offences. 
The  answer  of  the  military  authorities  to  any  such  process  would  have 
been : ‘ We  are  empowered  to  try  and  punish  the  persons  who  have  com- 
mitted the  offences  alleged,  and  we  will  see  that  justice  is  done  in  the 
premises.’  Interference  with  the  army  would  thus  have  been  impossible ; 
and  offences  committed  by  soldiers,  discovered  after  the  army  had  marched 
to  a distance,  when  the  production  of  evidence  before  a court-martial 
would  have  been  difficult,  if  not  impossible,  or  discovered  after  the  war 


109 


was  over  and  the  army  disbanded,  would  not  go  unpunished.  Surely 
Congress  could  not  have  intended  that  in  such  cases  the  guilty  should 
go  free. 

“ In  denying  to  the  military  tribunals  exclusive  jurisdiction,  under  the 
section  in  question,  over  the  offences  mentioned,  when  committed  by  per- 
sons in  the  military  service  of  the  United  States  and  subject  to  the  ar- 
ticles of  war,  we  have  reference  to  them  when  they  were  held  in  States  oc- 
cupying, as  members  of  the  Union,  their  normal  and  constitutional  rela- 
tions to  the  federal  government,  in  which  the  supremacy  of  that  govern- 
ment was  recognized  and  the  civil  courts  were  open  aud  in  the  undis- 
turbed exercise  of  their  jurisdiction.  When  the  armies  of  the  United  States 
were  in  the  territory  of  the  insurgent  States,  banded  together  in  hostility 
to  the  national  government  and  making  war  against  it : in  other  words, 
when  the  armies  of  the  United  States  were  in  the  enemy’s  country  the 
military  tribunals  mentioned  had,  under  the  laws  of  war,  and  the  author- 
ity conferred  by  the  section  named,  exclusive  jurisdiction  to  try  and  pun- 
ish offences  of  every  grade  committed  by  persons  in  the  military  service. 
Officers  and  soldiers  of  the  armies  of  the  Union  were  not  subject  during 
the  war  to  the  laws  of  the  enemy  or  amenable  to  his  tribunals  for  offences 
committed  by  them.  They  were  answerable  only  to  their  own  gov- 
ernment. and  only  by  its  laws,  as  enforced  by  its  armies,  could  they  be 
punished. 

“ It  is  well  settled  that  a foreign  ai'my  permitted  to  march  through  a 
friendly  country,  or  to  be  stationed  in  it,  by  authority  of  its  government 
or  sovereign,  is  exempt  from  the  civil  and  criminal  jurisdiction  of  the  place. 
The  sovereign  is  understood,  said  this  court  in  the  celebrated  case  of  The 
Exchange,  to  cede  a portion  of  his  territorial  jurisdiction  when  he  allows 
the  troops  of  a foreign  prince  to  pass  through  his  dominions  : — 1 In  such 
case,  without  any  express  declaration  waiving  jurisdiction  over  the  army 
to  which  this  right  of  passage  has  been  granted,  the  sovereign  who  should 
attempt  to  exercise  it  would  certainly  be  considered  as  violating  his  faith. 
By  exercising  it,  the  purpose  for  which  the  free  passage  was  granted 
would  be  defeated,  and  a portion  of  the  military  force  of  a foreign  inde- 
pendent nation  would  be  diverted  from  those  national  objects  and  duties 
to  which  it  was  applicable,  and  would  be  withdrawn  from  the  control  of 
the  sovereign  whose  power  and  whose  safety  might  greatly  depend  on  re- 
taining the  exclusive  command  and  disposition  of  this  force.  The  grant 
of  a free  passage,  therefore,  implies  a waiver  of  all  jurisdiction  over  the 
troops  during  their  passage,  and  permits  the  foreign  general  to  use  that 
discipline  and  to  inflict  those  punishments  which  the  government  of  his 
army  may  require.’ 

“If  an  army  marching  through  a friendly  country  would  thus  be 
exempt  from  its  civil  and  criminal  jurisdiction,  a fortiori  would  an  army 
invading  an  enemy’s  country  be  exempt.  The  fact  that  war  is  waged  be- 
tween twro  countries  negatives  the  possibility  of  jurisdiction  being  exer- 
cised by  the  tribunals  of  the  one  country  over  persons  engaged  in  the 


no 


military  service  of  the  other  for  offences  committed  while  in  such  ser- 
vice. Aside  from  this  want  of  jurisdiction  there  would  be  something  in- 
congruous and  absurd  in  permitting  an  officer  or  soldier  of  an  invading 
army  to  be  tried  by  bis  enemy,  whose  country  he  bad  invaded. 

“ The  tact  that  when  the  offence  was  committed,  for  which  the  defend- 
ant was  indicted,  the  State  of  Tennessee  was  in  the  military  occupation 
of  the  United  States,  with  a military  governor  at  its  head,  appointed  by 
the  President,  cannot  alter  this  conclusion.  Tennessee  was  one  of  the  in- 
surgent States  forming  the  organization  known  as  the  Confederate  States, 
against  which  the  war  was  waged.  Her  territory  was  enemy’s  country, 
and  its  character  in  this  respect  was  not  changed  until  long  afterwards. 

“ The  doctrine  of  international  law  on  the  effect  of  military  occupa- 
tion of  enemy's  territory  upon  its  former  laws  is  well  established. 
Though  the  late  war  was  not  between  independent  nations,  but  between 
different  portions  of  the  same  nation,  yet  having  taken  the  proportions 
of  a territorial  war,  the  insurgents  having  become  formidable  enough  to 
be  recognized  as  belligerents,  the  same  doctrine  must  be  held  to  apply. 
The  right  to  govern  the  territory  of  the  enemy  during  its  military  occu- 
pation is  one  of  the  incidents  of  war,  being  a consequence  of  its  acquisi- 
tion ; and  the  character  and  form  of  the  government  to  be  established  de- 
pend entirely  upon  the  laws  of  the  conquering  State  or  the  order  of  its 
military  commander.  By  such  occupation  the  political  relations  between 
the  people  of  the  hostile  country  and  their  former  government  or  sover- 
eign are  for  the  time  severed  ; but  the  municipal  laws,  that  is,  the  laws 
which  regulate  private  rights,  enforce  contracts,  punish  crime,  and  regu- 
late the  transfer  of  property,  remain  in  full  force,  so  far  as  they  affect 
the  inhabitants  of  the  country  among  themselves,  unless  suspended  or 
superseded  by  the  conqueror.  And  the  tribunals  by  which  the  laws  are 
enforced  continue  as  before  unless  thus  changed.  In  other  words,  the 
municipal  laws  of  the  State  and  their  administration  remain  in  full  force 
so  far  as  the  inhabitants  of  the  country  are  concerned  unless  changed  by 
the  occupying  belligerent.  * 

“ This  doctrine  does  not  affect  in  any  respect  the  exclusive  character  of 
the  jurisdiction  of  the  military  tribunals  over  the  officers  and  soldiers  of 
the  army  of  the  United  States  in  Tennessee  during  the  war;  for,  as  al- 
ready said,  they  were  not  subject  to  the  laws,  nor  amenable  to  the  tribu- 
nals of  the  hostile  country.  The  laws  of  the  State  for  the  punishment 
of  crime  were  continued  in  force  only  for  the  protection  and  benefit  of 
its  own  people.  As  respects  them,  the  same  acts  which  constituted 
offences  before  the  military  occupation  constituted  offences  afterwards; 
and  the  same  tribunals,  unless  superseded  by  order  of  the  military  com- 
manders, continued  to  exercise  their  ordinary  jurisdiction. 

“ If  these  views  be  correct,  the  plea  of  the  defendant  of  a former  con- 
viction for  the  same  offence  by  a court-martial  under  the  laws  of  the 
United  States  was  not  a proper  plea  in  the  case.  Such  a plea  admits  the 


* Halleck’s  Int.  Law,  chap,  xxxiii. 


Ill 


jurisdiction  of  the  criminal  court  to  try  the  offence  if  it  were  not  for  the 
former  conviction.  Its  inapplicability,  however,  will  not  prevent  our 
giving  effect  to  the  objection  which*  the  defendant  in  this  irregular  way 
attempted  to  raise,  that  the  state  court  had  no  jurisdiction  to  try  and  pun- 
ish him  for  the  offence  alleged.  The  judgment  and  conviction  in  the 
criminal  court  should  have  been  set  aside  and  the  indictment  quashed 
for  want  of  jurisdiction.  Their  effect  was  to  defeat  an  act  done  under  the 
authority  of  the  United  States  by  a tribunal  of  officers  appointed  under 
the  law  enacted  for  the  government  and  regulation  of  the  army  in  time 
of  war.  and  whilst  that  army  was  in  a hostile  and  conquered  State.  The 
judgment  of  that  tribunal  at  the  time  it  was  rendered,  as  well  as  the  per- 
son of  the  defendant,  were  beyond  the  control  of  the  State  of  Tennessee. 
The  authority  of  the  United  States  was  then  sovereign  and  their  juris- 
diction exclusive.  Nothing  which  has  since  occurred  has  diminished  that 
authority  or  impaired  the  efficacy  of  that  judgment. 

“ In  thus  holding,  we  do  not  call  in  question  the  correctness  of  the 
general  doctrine  asserted  by  the  Supreme  Court  of  Tennessee,  that  the 
same  act  may.  in  some  instances,  be  an  offence  against  two  governments, 
and  that  the  transgressor  may  be  held  liable  to  punishment  by  both  when 
the  punishment  is  of  such  a character  that  it  can  be  twice  inflicted,  or  by 
either  of  the  two  governments  if  the  punishment,  from  its  nature,  can 
be  only  once  suffered.  It  may  well  be  that  the  satisfaction  which  the 
transgressor  makes  for  the  violated  law  of  the  United  States  is  no  atone- 
ment for  the  violated  law  of  Tennessee.  But  here  there  is  no  case  pre- 
sented for  the  application  of  the  doctrine.  The  laws  of  Tennessee  with 
regard  to  offences  and  their  punishment,  which  were  allowed  to  remain 
in  force  during  its  military  occupation,  did  not  apply  to  the  defendant, 
as  he  was  at  the  time  a soldier  in  the  army  of  the  United  States  and  sub- 
ject to  the  articles  of  war.  He  was  responsible  for  his  conduct  to  the 
laws  of  his  own  government  only  as  enforced  by  the  commander  of  its 
army  in  that  State,  without  whose  consent  he  could  not  even  go  beyond 
its  lines.  Had  he  been  caught  by  the  forces  of  the  enemy,  after  com- 
mitting the  offence,  he  might  have  been  subjected  to  a summary  trial  and 
punishment  by  order  of  their  commander,  and  there  would  have  been  no 
just  ground  of  complaint,  for  the  marauder  and  assassin  are  not  protected 
by  any  usages  of  civilized  warfare.  But  the  courts  of  the  State,  whose 
regular  government  was  superseded,  and  whose  laws  were  tolerated  from 
motives  of  convenience,  were  without  jurisdiction  to  deal  with  him.” 

The  Supreme  Court  of  the  United  States  accordingly 
reversed  the  judgment  of  the  Supreme  Court  of  Tennes- 
see; but  it  did  not  allow  the  criminal  to  escape.  It  added 
to  its  reversal  the  following  direction  : 

“ But  as  the  defendant  was  guilty  of  murder,  as  clearly  appears  not 
only  by  the  evidence  in  the  record  in  this  case,  but  in  the  record  of  the 
proceedings  of  the  court-martial,  a murder  committed,  too.  under  circum- 


112 


stances  of  great  atrocity,  and  as  he  was  convicted  of  the  crime  by  that 
court  and  sentenced  to  death,  and  it  appears  by  his  plea  that  said  judg- 
ment was  duly  approved  and  still  remains  without  any  action  having 
been  taken  upon  it,  he  may  be  delivered  up  to  the  military  authorities 
of  the  United  States,  to  be  dealt  with  as  required  by  law.” 

The  prisoner  was  soon  afterwards  turned  over  to  the 
military  authorities  of  the  United  States,  when  his  punish- 
ment was  commuted  to  imprisonment  for  life  at  hard  labor, 
and  he  is  now  thus  imprisoned. 


In  the  case  of  Dow  vs.  Johnson,  at  the  October  term  of 
1879,  the  question  came  before  the  court  whether  an  officer 
of  the  army  of  the  United  States,  whilst  in  service  during 
the  late  war  in  the  enemy’s  country,  was  liable  to  a civil 
action  in  the  courts  of  that  country  for  injuries  resulting 
from  acts  of  war  ordered  by  him  in  his  military  character; 
and  it  was  held  that  he  was  not  thus  liable,  and  that  he 
could  not  be  called  upon  to  justify  or  explain  his  military 
conduct  in  a civil  tribunal  upon  any  allegation  of  the  in- 
jured party  that  the  acts  complained  of  were  not  justified 
by  the  necessities  of  war.  He  was  responsible  only  to  his 
own  government,  and  only  by  its  laws,  administered  by  its 
authority,  could  he  be  called  to  account. 

The  case  was  one  which  excited  a good  deal  of  interest, 
and  the  question  presented  was  elaborately  discussed.  The 
defendant,  Neal  Dow,  was  a brigadier-general  in  the  army 
of  the  United  States,  and  in  1862  and  1863  was  stationed 
in  Louisiana  in  command  of  Forts  Jackson  and  St.  Philip, 
on  the  Mississippi  River,  below  New  Orleans.  These 
forts  surrendered  to  the  forces  of  the  United  States  in 
April,  1862.  The  fleet  under  Admiral  Farragut  had  passed 
them  and  reached  New  Orleans  on  the  25th  of  the  month, 
and  soon  afterwards  the  city  was  occupied  by  the  forces  of 
the  United  States  under  General  Butler.  On  taking  pos- 
session of  the  city,  the  General  issued  a proclamation, 
hearing  date  on  the  1st  of  May,  1862,  in  which,  among 
other  things,  he  declared  that  until  the  restoration  of  the 


113 


authority  of  the  United  States  the  city  would  he  governed 
by  martial  law;  that  all  disorders,  disturbances  of  the  peace, 
and  crimes  of  an  aggravated  nature,  interfering  with  the 
forces  or  laws  of  the  United  States,  would  “be  referred  to 
a military  court  for  trial  and  punishment  that  other 
misdemeanors  would  be  subject  to  the  municipal  authority 
if  it  desired  to  act ; and  that  civil  causes  between  parties 
would  “'be  referred  to  the  ordinary  tribunals.”  Under 
this  proclamation,  the  Sixth  District  Court  of  the  City  and 
Parish  of  Xew  Orleans  was  allowed  to  continue  in  exist- 
ence, the  judge  having  taken  the  oath  of  allegiance  to  the 
United  States. 

In  January,  1863,  General  Dow  was  sued  in  that  court 
by  one  Johnson,  who  set  forth  in  his  petition  that  lie  was 
a citizen  of  Xew  York,  and  for  several  years  had  been  the 
owner  of  a plantation  and  slaves  in  Louisiana,  on  the  Mis- 
sissippi River,  about  forty-three  miles  from  Xew  Orleans; 
that  on  the  sixth  of  September,  1862,  during  his  tempo- 
rary absence,  the  steamer  Avery,  in  charge  of  Captain 
Snell,  of  Company  B,  of  the  Thirteenth  Maine  Regiment, 
with  a force  under  his  command,  had  stopped  at  the  plan- 
tation, and  taken  from  it  twenty -five  hogsheads  of  sugar; 
and  that  said  force  had  plundered  the  dwelling-house  of 
the  plantation  and  carried  off  a silver  pitcher,  half  a dozen 
silver  knives,  and  other  table  ware,  the  private  property 
of  the  plaintiff,  the  whole  property  taken  amounting  in 
value  to  SI, 611. 29;  that  these  acts  of  Captain  Snell  and 
of  the  officers  and  soldiers  under  his  command,  which  the 
petition  characterized  as  “ illegal,  wanton,  oppressive,  and 
unjustifiable/’  were  perpetrated  under  a verbal  and  secret 
order  of  Brigadier-General  Xeal  Dow,  then  in  the  service 
of  the  United  States,  and  in  command  of  Forts  Jackson 
and  St.  Philip,  who,  by  his  secret  orders,  which  the  peti- 
tion declared  were  “ unauthorized  by  his  superiors,  or  by 
any  provision  of  martial  law,  or  by  any  requirements  of 
necessity  growing  out  of  a state  of  war,”  wantonly  abused 
his  power  and  inflicted  upon  the  plaintiff  the  wrongs  of 
8 


114 


which  he  complained;  and,  therefore,  he  prayed  judgment 
against  the  General  for  the  value  of  the  property. 

To  this  suit  General  Dow,  though  personally  served 
with  citation,  made  no  appearance.  He  may  have  thought, 
as  the  Supreme  Court  in  its  opinion  suggests,  that  during 
the  existence  of  the  war,  in  a district  where  insurrection 
had  recently  been  suppressed,  and  was  only  kept  from 
breaking  out  again  by  the  presence  of  the  armed  forces 
of  the  United  States,  he  was  not  called  upon  by  any  rule  of 
law  to  answer  to  a civil  tribunal  for  his  military  orders, 
and  satisfy  it  that  they  were  authorized  by  his  superiors, 
or  by  the  necessities  growing  out  of  a state  of  war.  He 
may  have  supposed  that  for  his  military  conduct  he  was 
responsible  only  to  his  military  superiors  and  the  govern- 
ment whose  officer  he  was. 

Be  that  as  it  may,  or  what  ever  other  reason  he  may 
have  had,  he  made  no  response  to  the  petition  ; he  was 
therefore  defaulted.  The  Sixth  District  Court  of  the  Par- 
ish of  New  Orleans  did  not  seem,  as  the  Supreme  Court 
observes,  to  consider  that  it  was  at  all  inconsistent  with  his 
duty,  as  an  officer  in  the  army  of  the  United  States,  to  leave 
his  post  at  the  forts,  which  guarded  the  passage  of  the 
Mississippi,  nearly  a hundred  miles  distant,  and  attend  upon 
its  summons  to  justify  his  military  orders,  or  seek  coun- 
sel and  procure  evidence  for  his  defence.  Nor  did  it  ap- 
pear to  have  occurred  to  the  court  that  if  jurisdiction  over 
him  was  recognized  there  might  spring  up  such  a multi- 
tude of  suits  as  to  keep  the  officers  of  the  army  stationed 
in  its  district  so  busy  that  they  would  have  little  time  to 
look  after  the  enemy  and  guard  against  his  attacks.  The  de- 
fault of  the  General  being  entered,  testimony  was  received 
showing  that  the  articles  mentioned  were  seized  by  a mili- 
tary detachment  sent  by  him  and  removed  from  the  plan- 
tation, and  that  their  value  amounted  to  $1,454.81.  Judg- 
ment was  thereupon  entered  in  favor  of  the  plaintiff  for 
that  sum  with  interest  and  costs.  It  bore  date  April  9th, 
1863. 


115 


Upon  this  judgment  an  action  was  brought  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Maine.  The 
declaration  stated  the  recovery  of  the  judgment  mentioned 
and  made  profert  of  an  authenticated  copy.  To  it  the  de- 
fendant pleaded  the  general  issue,  nul  tiel  record,  and  cer- 
tain special  pleas,  the  object  of  which  was  to  show  that  the 
district  court^  had  no  jurisdiction  to  render  the  judg- 
ment in  question,  for  the  reason  that  at  the  time  its  district 
was  a part  of  the  country  in  insurrection  against  the  gov- 
ernment of  the  United  States,  and  making  war  against  it, 
and  was  held  in  subjection  by  its  arme.d  forces  ; that  the 
defendant  was  then  a brigadier-general  in  the  military  ser- 
vice of  the  United  States,  commissioned  by  the  President, 
and  acting  in  that  State  under  his  orders  and  the  articles  of 
war;  and  was  authorized  by  the  general  order  of  the  Presi- 
dent of  July  22d,  1862,  to  seize  and  use  any  property,  real 
or  personal,  which  might  be  necessary  or  convenient  for 
his  command  as  supplies,  or  for  other  military  purposes; 
that  by  his  order  the  troops  under  his  command  seized 
from  the  plaintiff  then  a citizen  of  that  State,  certain  chat- 
tels necessary  and  convenient  for  supplies  for  the  army 
of  the  United  States,  and  other  military  purposes  ; and 
that  for  that  seizure  the  action  was  brought  in  the  Sixth 
District  Court  of  Xew  Orleans  against  him,  in  which  the 
judgment  in  question  was  rendered  ; that  the  general 
government  had  deprived  that  court  of  all  jurisdiction, 
except  such  as  was  conferred  by  the  commanding  general, 
and  that  no  jurisdiction  over  persons  in  the  military  ser- 
vice of  the  United  States  for  acts  performed  in  the  line 
of  their  duty  was  ever  thus  conferred  upon  it. 

Upon  these  pleas  the  main  question  stated  above  was 
discussed.  In  deciding  it,  Judge  Field,  who  gave  the 
opinion  of  the  court,  after  disposing  of  a preliminary  ob- 
jection, said  as  follows  : 

“ This  brings  us  to  the  consideration  of  the  main  question  involved,  which 
we  do  not  regard  as  at  all  difficult  of  solution,  when  reference  is  had  to  the 
character  of  the  late  war.  The  war,  though  not  between  independent 
nations,  but  between  different  portions  of  the  same  nation,  was  aceompa- 


116 


niecl  by  the  general  incidents  of  an  international  war.  It  was  waged  be- 
tween people  occupying  different  territories,  separated  from  each  other  by 
well-defined  lines.  It  attained  proportions  seldom  reached  In  the  wars  of 
modern  nations.  Armies  of  greater  magnitude  and  more  formidable  in 
their  equipments  than  any  known  in  the  present  century  were  put  into 
the  field  by  the  contending  parties.  The  insurgent  States  united  in  an  or- 
ganization known  as  the  Confederate  States,  by  which  they  acted  through 
a central  authority  guiding  their  military  movements  ; and  to  them  bel- 
ligerent rights  were  accorded  by  the  federal  government.  This  was 
shown  in  the  treatment  of  captives  as  prisoners  of  war,  the  exchange  of 
prisoners,  the  release  of  officers  on  parole,  and  in  numerous  arrangements 
to  mitigate  as  far  as  possible  the  inevitable  sufferings  and  miseries  attend- 
ing the  conflict.  The  people  of  the  loyal  States  on  the  one  hand,  and  the 
people  of  the  Confederate  States  on  the  other,  thus  became  enemies  to 
each  other,  and  were  liable  to  be  dealt  with  as  such  without  reference  to 
their  individual  opinions  and  dispositions.  Commercial  intercourse  and 
correspondence  between  them  were  prohibited,  as  well  by  express  enact- 
ments of  Congress  as  by  the  accepted  doctrines  of  public  law.  The  enforce- 
ment of  contracts  previously  made  between  them  was  suspended,  part- 
nerships were  dissolved,  and  the  courts  of  each  belligerent  were  closed  to 
the  citizens  of  the  other,  and  its  territory  was  to  the  other  enemies’  coun- 
try. When,  therefore,  our  armies  marched  into  the  country  which  ac- 
knowledged the  authority  of  the  Confederate  government,  that  is,  into  the 
enemy’s  country,  their  officers  and  soldiers  were  not  subject  to  its  laws, 
nor  amenable  to  its  tribunals  for  their  acts.  They  were  subject  only  to 
their  own  government,  and  only  by  its  laws,  administered  by  its  author- 
ity, could  they  be  called  to  account.  As  was  observed  in  the  recent  case 
of  Coleman  vs.  Tennessee,  it  is  well  settled  that  a foreign  army,  permitted 
to  march  through  a friendly  country,  or  to  be  stationed  in  it  by  authority 
of  its  sovereign  or  government,  is  exempt  from  its  civil  and  criminal 
jurisdiction.  The  law  was  so  stated  in  the  celebrated  case  of  The  Ex- 
change, reported  in  the  seventh  of  Crunch.  Much  more  must  this  exemp- 
tion prevail  where  a hostile  army  invades  an  enemy’s  country.  There 
would  be  something  singularly  absurd  in  permitting  an  officer  or  soldier 
of  an  invading  army  to  be  tried  by  his  enemy,  whose  country  it  had  in- 
vaded. The  same  reasons  for  his  exemption  from  criminal  prosecution 
apply  to  civil  proceedings.  There  would  be  as  much  incongruity,  and  as 
little  likelihood  of  freedom  from  the  irritations  of  the  war,  in  civil  as  in 
criminal  proceedings  prosecuted  during  its  continuance.  In  both  in- 
stances, from  the  very  nature  of  war,  the  tribunals  of  the  enemy  must  be 
without  jurisdiction  to  sit  in  judgment  upon  the  military  conduct  of  the 
officers  and  soldiers  of  the  invading  army.  It  is  difficult  to  reason  upon 
a proposition  so  manifest ; its  correctness  is  evident  upon  its  bare  an- 
nouncement, and  no  additional  force  can  be  given  to  it  by  any  amount  of 
statement  as  to  the  proper  conduct  of  war.  It  is  manifest  that  if  officers 
or  soldiers  of  the  army  could  be  required  to  leave  their  posts  and  troops, 


117 


upon  the  summons  of  every  local  tribunal,  on  pain  of  a judgment  by  de- 
fault against  them,  which  at  the  termination  of  hostilities  could  be  en- 
forced by  suit  in  their  own  States,  the  efficiency  of  the  army  as  a hostile 
force  would  be  utterly  destroyed.  Nor  can  it  make  any  difference  with 
what  denunciatory  epithets  the  complaining  party  may  characterize  their 
conduct.  If  such  epithets  could  confer  jurisdiction  they  would  always 
be  supplied  in  every  variety  of  form.  An  inhabitant  of  a bombarded 
city  would  have  little  hesitation  in  declaring  the  bombardment  unneces- 
sary and  cruel.  Would  it  be  pretended  that  he  could  call  the  command- 
ing general,  who  ordered  it,  before  a local  tribunal  to  show  its  necessity 
or  be  mulcted  in  damages?  The  owner  of  supplies  seized,  or  property 
destroyed,  would  have  no  difficulty,  as  human  nature  is  constituted,  in 
believing  and  affirming  that  the  seizure  and  destruction  were  wanton  and 
needless.  All  this  is  too  plain  for  discussion  and  will  be  readily  admitted. 

“ Nor  is  the  position  of  the  invading  belligerent  affected,  or  his  relation 
to  the  local  tribunals  changed,  by  his  temporary  occupation  and  domina- 
tion of  any  portion  of  the  enemy’s  country.  As  a necessary  consequence 
of  such  occupation  and  domination,  the  political  relations  of  its  people  to 
their  former  government  are,  for  the  time,  severed.  But  for  their  pro- 
tection and  benefit,  and  the  protection  and  benefit  of  others  not  in  the 
military  service  ; or,  in  other  words,  in  order  that  the  ordinary  pursuits 
and  business  of  society  may  not  be  unnecessarily  deranged,  the  munici- 
pal laws,  that  is,  such  as  affect  private  rights  of  persons  and  property, 
and  provide  for  the  punishment  of  crime,  are  generally  allowed  to  con- 
tinue in  force,  and  to  be  administered  by  the  ordinary  tribunals  as  they 
were  administered  before  the  occupation.  They  are  considered  as  con- 
tinuing unless  suspended  or  superseded  by  the  occupying  belligerent. 
But  their  continued  enforcement  is  not  for  the  protection  or  control  of 
the  army  or  its  officers  or  soldiers.  These  remain  subject  to  the  laws  of 
war,  and  are  responsible  for  their  conduct  only  to  their  own  government, 
and  the  tribunals  by  which  those  laws  are  administered.  If  guilty  of 
wanton  cruelty  to  persons,  or  of  unnecessary  spoliation  of  property,  or  of 
other  acts  not  authorized  by  the  laws  of  war,  they  may  be  tried  and  pun- 
ished by  the  military  tribunals.  They  are  amenable  to  no  other  tribunal, 
except  that  of  public  opinion,  which,  it  is  to  be  hoped,  will  always  brand 
with  infamy  all  who  authorize  or  sanction  acts  of  cruelty  and  oppression. 

“If,  now,  we  apply  the  views  thus  expressed  to  the  case  at  bar,  there 
will  be  no  difficulty  in  disposing  of  it.  The  condition  of  New  Orleans 
and  of  the  district  .connected  with  it,  at  the  time  of  the  seizure  of  the 
property  of  the  plaintiff  and  the  entry  of  the  judgment  against  Dow,  was 
not  that  of  a country  restored  to  its  normal  relations  to  the  Union,  by 
the  fact  that  they  had  been  captured  by  our  forces,  and  were  held  in 
subjection.  A feeling  of  intense  hostility  against  the  government  of  the 
Union  prevailed  as  before  with  the  people,  which  was  ready  to  break  out 
into  insurrection  upon  the  appearance  of  the  enemy  in  force,  or  upon  the 
withdrawal  of  our  troops.  The  country  was  under  martial  law ; and  its 


118 


armed  occupation  gave  no  jurisdiction  to  the  civil  tribunals  over  the  offi- 
cers and  soldiers  of  the  occupying  army.  They  were  not  to  be  harassed 
and  mulcted  at  the  complaint  of  any  person  aggrieved  by  their  action. 
The  jurisdiction  which  the  district  court  was  authorized  to  exercise  over 
civil  cases  between  parties,  by  the  proclamation  of  General  Butler,  did 
not  extend  to  cases  against  them.  The  third  special  plea  alleges  that  the 
court  was  deprived  by  the  general  government  of  all  jurisdiction  except 
such  as  was  conferred  by  the  commanding  general,  and  that  no  jurisdic- 
tion over  persons  in  the  military  service  for  acts  performed  in  the  line  of 
their  duty  was  ever  thus  conferred  upon  it.  It  was  not  for  their  control 
in  any  way,  or  the  settlement  of  complaints  against  them,  that  the  court 
was  allowed  to  continue  in  existence.  It  was,  as  already  stated,  for  the 
protection  and  benefit  of  the  inhabitants  of  the  conquered  country  and 
others  there  not  engaged  in  the  military  service. 

“ If  private  property  there  was  taken  by  an  officer  or  a soldier  of  the 
occupying  army,  acting  in  his  military  character,  when,  by  the  laws  of 
war,  or  the  proclamation  of  the  commanding  general,  it  should  have  been 
exempt  from  seizure,  the  owner  could  have  complained  to  that  com- 
mander, Who  might  have  ordered  restitution,  or  sent  the  offending  party 
before  a military  tribunal,  as  circumstances  might  have  required,  or  he 
could  have  had  recourse  to  the  government  for  redress.  But  there  could 
be  no  doubt  of  the  right  of  the  army  to  appropriate  any  property  there, 
although  belonging  to  private  individuals,  which  was  necessary  for  its 
support  or  convenient  for  its  use.  This  was  a belligerent  right,  which 
was  not  extinguished  by  the  occupation  of  the  country,  although  the 
necessity  for  its  exercise  was  thereby  lessened.  However  exempt  from 
seizure  on  other  grounds  private  property  there  may  have  been,  it  was 
always  subject  to  be  appropriated  when  required  by  the  necessities  or 
convenience  of  the  army,  though  the  owner  of  property  taken  in  such  case 
may  have  had  a just  claim  against  the  government  for  indemnity. 

“This  doctrine  of  non-liability  to  the  tribunals  of  the  invaded  country 
for  acts  of  warfare  is  as  applicable  to  members  of  the  Confederate  army 
when  in  Pennsylvania,  as  to  members  of  the  National  army  when  in  the 
insurgent  States.  The  officers  or  soldiers  of  neither  army  could  be 
called  to  account  civilly  or  criminally  in  those  tribunals  for  such  acts, 
whether  those  acts  resulted  in  the  destruction  of  property  or  the  destruc- 
tion of  life;  nor  could  they  be  required  by  ihose  tribunals  to  explain  or 
justify  their  conduct  upon  any  averment  of  the  injured  party  that  the 
acts  complained  of  were  unauthorized  by  the  necessities  of  war.  It  fol- 
lows that,  in  our  judgment,  the  District  Court  of  New  Orleans  was  with- 
out jurisdiction  to  render  the  judgment  in  question,  and  the  special  pleas 
in  this  case  constituted  a perfect  answer  to  the  declaration. — (See  People 
vs.  Coleman,  97  U.  S.,  509;  Ford  vs.  Surget,  Id.,  605  ; also  LeCaux  vs.  Eden, 
2 Doug.,  594 ; Lamar  vs.  Browme,  92  U.  S.,  197,  and  Coolidge  vs.  Guthrie, 
2 Amor.  Law'.  Reg.,  N.  S.,  22.) 

“We  fully  agree  with  the  presiding  justice  of  the  circuit  court  in  the 
doctrine  that  the  military  should  always  be  kept  in  subjection  to  the 


119 


laws  of  the  country  to  which  it  belongs,  and  that  he  is  no  friend  to  the 
Republic  who  advocates  the  contrary.  The  established  principle  of  every 
free  people  is,  that  the  law  shall  alone  govern;  and  to  it  the  military 
must  always  yield.  AVe  do  not  controvert  the  doctrine  of  Mitchell  vs.  Har- 
mony ; ou  the  contrary,  we  approve  it.  But  it  has  no  application  to  the 
case  at  bar.  The  trading  for  which  the  seizure  was  there  made  had  been 
permitted  by  the  Executive  Department  of  our  government.  The  ques- 
tion here  is,  what  is  the  law*which  governs  an  army  invading  an  enemy’s 
country?  It  is  not  the  civil  law  of  the  invaded  country ; it  is  not  the 
civil  law  of  the  conquering  country;  it  is  military  law — the  law  of  war — 
and  its  supremacy  for  the  protection  of  the  officers  and  soldiers  of  the 
army,  when  in  service  in  the  field  in  the  enemy’s  country,  is  as  essential 
to  the  efficiency  of  the  army  as  the  supremacy  of  the  civil  law  at  home, 
and  in  time  of  peace,  is  essential  to  the  preservation  of  liberty.” 


Protection  of  Sealed  Matter  in  the  Mail  from  In- 
spection by  Officials  of  the  Post-Office. 

How  far  matter  iu  the  mail  can  be  protected  from  in- 
spection by  officials  of  the  post-office,  and  at  the  same 
time  the  mail  prevented  from  being  the  \Tehicle  of  circu- 
lating publications  having  a tendency  to  corrupt  the  pub- 
lic morals,  has  been  for  many  years  the  subject  of  frequent 
discussion  and  of  much  conflict  of  opinion.  It  was  the 
occasion  of  an  earnest  debate  in  the  Senate  of  the  United 
States  in  1836.  President  Jackson,  in  bis  annual  message 
of  the  previous  year,  had  referred  to  the  attempted  circu- 
lation through  the  mail  of  inflammatory  appeals,  addressed 
to  the  passions  of  the  slaves,  in  prints,  and  in  various  pub- 
lications, tending  to  stimulate  them  to  insurrection,  and 
suggested  to  Congress  the  propriety  of  passing  a law  pro- 
hibiting, under  severe  penalties,  such  circulation  of  in- 
cendiary publications”  in  the  Southern  States.  In  the 
Senate,  that  portion  of  the  message  was  referred  to  a select 
committee,  of  which  Mr.  Calhoun  was  chairman;  and  he 
made  an  elaborate  report  on  the  subject,  in.  which  he  con- 
tended that  it  belonged  to  the  States,  and  not  to  Congress, 
to  determine  what  is  and  what  is  not  calculated  to  disturb 


120 


their  security,  and  that  to  hold  otherwise  would  be  fatal  to 
the  States;  for  if  Congress  might  determine  what  papers 
were  incendiary,  and  as  such  prohibit  their  circulation 
through  the  mail,  it  might  also  determine  what  were  not 
incendiary  and  enforce  their  circulation.  Whilst,  there- 
fore, condemning  in  the  strongest  terras  the  circulation  of 
the  publications,  he  insisted  that  Congress  had  not  the 
power  to  pass  a law  prohibiting  their  transmission  through 
the  mail,  on  the  ground  that  it  would  abridge  the  liberty 
of  the  press.  “ To  understand,”  lie  said,  “ more  fully  the 
extent  of  the  control  which  the  right  of  prohibiting  circula- 
tion through  the  mail  would  give  to  the  government  over 
the  press,  it  must  he  borne  in  mind  that  the  power  of  Con- 
gress over  the  post-office  and  the  mail  is  an  exclusive 
power.  It  must  also  lie  remembered  that  Congress,  in  the 
exercise  of  this  power,  may  declare  any  road  or  navigable 
water  to  be  a post-road;  and  that,  by  the  act  of  1825,  it  is 
provided  ‘ that  no  stage,  or  other  vehicle  which  regularly 
performs  trips  on  a post-road,  or  on  a road  parallel  to  it, 
shall  carry  letters.’  The  same  provision  extends  to  pack- 
ets, boats,  or  other  vessels  on  navigable  waters.  Like  pro- 
vision may  he  extended  to  newspapers  and  pamphlets, 
whim,  if  it  he  admitted  that  Congress  has  the  right  to  dis- 
criminate in  reference  to  their  character,  what  paper  shall 
or  what  shall  not  be  transmitted  by  the  mail,  would  subject 
the  freedom  of  the  press,  on  all  subjects,  political,  moral,  and 
religious,  completely  to  its  will  and  pleasure.  It  would,  in 
fact,  in  some  respects,  more  effectually  control  the  freedom 
of  the  press  than  any  sedition  law,  however  severe  its  pen- 
alties.” Mr.  Calhoun,  at  the  same  time,  contended  that 
when  a State  had  pronounced  certain  publications  to  he 
dangerous  to  its  peace  and  prohibited  their  circulation,  it 
was  the  duty  of  Congress  to  respect  its  laws  and  co-oper- 
ate in  their  enforcement;  and  whilst,  therefore,  Congress 
could  not  prohibit  the  transmission  of  the  incendiary  doc- 
uments through  the  mails,  it  could  prevent  their  delivery 
by  the  postmasters  in  the  States  where  their  circulation  was 


I 


121 


forbidden.  In  the  discussion  upon  the  bill  reported  by 
him,  similar  views  against  the  power  of  Congress  were  ex- 
pressed by  other  Senators,  who  did  not  concur  in  the  opin- 
ion that  the  delivery  of  papers  could  be  prevented  when 
their  transmission  was  permitted. 

The  question  thus  presented  came  before  the  Supreme 
Court  of  the  United  States  at  the  October  term  of  1877, 
in  Ex-parte  Jackson.  A section  of  the  Revised  Statutes 
provided  that  “ no  letter  or  circular  concerning  lotteries, 
so-called  gift  concerts,  or  other  similar  enterprises  offering 
prizes,”  should  he  carried  in  the  mail,  and  declared  that 
any  person  knowingly  depositing  anything  in  the  mail  to 
he  conveyed  in  violation  of  this  section  should  be  pun- 
ished by  a tine  of  from  one  to  five  hundred  dollars,  with 
costs  of  prosecution.  Under  this  section  one  Jackson  was 
indicted  in  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  New  York,  for  depositing  in  the 
mail  at  New  York,  to  he  conveyed  to  another  person,  a 
circular  concerning  a lottery  oflering  prizes.  Upon  being 
arraigned  he  stood  mute,  refusing  to  plead,  and  thereupon 
a plea  of  not  guilty  was  entered  in  his  behalf  by  order  of 
the  court.  He  was  subsequently  tried,  convicted,  and  sen- 
tenced to  pay  a fine  of  one  hundred  dollars,  with  the  costs 
of  the  prosecution,  and  to  be  committed  to  the  county  jail 
until  the  fine  and  costs  were  paid.  Upon  his  commitment 
he  presented  to  the  Supreme  Court  a petition,  alleging, 
among  other  things,  that  he  was  illegally  restrained  of  his 
liberty,  as  the  court  had  no  jurisdiction  to  punish  for  the 
matters  charged,  because  the  act  of  Congress  was  uncon- 
stitutional and  void.  He  therefore  prayed  for  a writ  of 
habeas  corpus  to  be  directed  to  the  marshal  to  bring  him 
before  the  court,  and  a writ  of  certiorari  to  be  directed  to 
the  clerk  of  the  circuit  court  to  send  up  the  record  of  his 
conviction,  that  the  court  might  inquire  into  the  cause  and 
legality  of  his  imprisonment.  Accompanying  the  petition, 
as  exhibits,  were  copies  of  the  indictment  and  of  the  rec- 
ord of  conviction.  The  court,  instead  of  ordering  that  the 


122 


writs  issue  at  once,  entered  a rule,  the  counsel  of  the  peti- 
tioner consenting  thereto,  that  cause  he  shown,  on  a day 
designated,  why  the  writs  should  not  issue  as  prayed,  and 
that  a copy  of  the  rule  he  served  on  the  Attorney-General 
of  the  United  States,  the  marshal  of  the  Southern  District 
of  New  York,  and  the  clerk  of  the  Circuit  Court.  On  the 
return  day  the  validity  of  the  act  was  argued.  The  court- 
decided  the  act  to  he  valid  and  refused  the  writs,  drawing 
a distinction,  in  the  right  of  inspection  hy  officials  of  the 
post-office,  between  sealed  matter  and  unsealed  matter, 
and  holding  that  sealed  matter  in  the  mail  is  equally 
protected  from  unreasonable  search  as  papers  in  one’s 
household.  In  giving  the  opinion  of  the  court,  Judge 
Field  said  as  follows  : 

“ The  power  vested  in  Congress  ‘to  establish  post-roads  and  post-offices’ 
lias  been  practically  construed,  since  the  foundation  of  the  government, 
to  authorize  not  merely  the  designation  of  the  routes  over  which  the  mail 
shall  be  carried,  and  the  offices  where  letters  and  other  documents  shall 
be  received  to  be  distributed  or  forwarded,  but  the  carriage  of  the  mail, 
and  all  measures  necessary  to  secure  its  safe  and  speedy  transit,  and  the 
prompt  delivery  of  its  contents.  The  validity  of  legislation  prescribing 
what  should  be  carried,  and  its  weight  and  form,  and  the  charges  to  which 
it  should  be  subjected,  has  never  been  questioned.  What  should  be  mail- 
able  has  varied  at  different  times,  changing  with  the  facility  of  trans- 
portation over  the  post-roads.  At  one  time  only  letters,  newspapers, 
magazines,  pamphlets,  and  other  printed  matter,  not  exceeding  eight 
ounces  in  weight,  were  carried;  afterwards  books  were  added  to  the  list; 
and  now  small  packages  of  merchandise,  not  exceeding  a prescribed 
weight,  as  well  as  books  and  printed  matter  of  all  kinds,  are  transported 
in  the  mail.  The,  power  possessed  by  Congress  embraces  the  regulation 
of  the  entire  postal  system  of  the  country.  The  right  to  designate  what 
shall  be  carried  necessarily  involves  the  right  to  determine  what  shall  be 
excluded.  The  difficulty  attending  the  subject  arises,  not  from  the  want 
of  power  in  Congress  to  prescribe  regulations  as  to  what  shall  constitute 
mail  matter,  but  from  the  necessity  of  enforcing  them  consistently  with 
rights  reserved  to  the  people,  of  far  greater  importance  than  the  trans- 
portation of  the  mail.  In  their  enforcement  a distinction  is  to  be  made 
between  different  kinds  of  mail  matter;  between  what  is  intended  to  be 
kept  free  from  inspection,  such  as  letters  and  sealed  packages  subject  to 
letter  postage ; and  what  is  open  to  inspection,  such  as  newspapers,  maga- 
zines. pamphlets,  and  other  printed  matter,  purposely  left  in  a condition 
to  be  examined.  Letters  and  sealed  packages  of  this  kind  in  the  mail 


123 


are  as  tally  guarded  from  examination  and  inspection,  except  as  to  their 
outward  form  and  weight,  as  if  they  were  retained  by  the  parties  for- 
warding them  in  their  own  domiciles.  The  constitutional  guaranty  of  the 
right  of  the  people  to  be  secure  in  their  papers  against  unreasonable 
searches  and  seizures  extends  to  their  papers,  thus  closed  against  inspec- 
tion. wherever  they  may  be.  Whilst  in  the  mail  they  can  only  be  opened 
and  examined  under  like  warrant,  issued  upon  similar  oath  or  affirma- 
tion. particularly  describing  the  thing  to  be  seized,  as  is  required  when 
papers  are  subjected  to  search  in  one’s  own  household.  No  law  of  Con- 
gress can  place  in  the  hands  of  officials  connected  with  the  postal  service 
any  authority  to  invade  the  secrecy  of  letters  and  such  sealed  packages 
in  the  mail : and  all  regulations  adopted  as  to  mail  matter  of  this  kind 
must  be  in  subordination  to  the  great  principle  embodied  in  the  fourth 
amendment  of  the  Constitution. 

" Nor  can  any  regulation  be  enforced  against  the  transportation  of 
printed  matter  in  the  mail,  which  is  open  to  examination,  so  as  to  inter- 
fere in  any  manner  with  the  freedom  of  the  press.  Liberty  of  circulating 
is  as  essential  to  that  freedom  as  liberty  of  publishing;  indeed,  without 
the  circulation  the  publication  would  be  of  little  value.  If,  therefore, 
printed  matter  be  excluded  from  the  mails,  its  transportation  in  any  other 
way  cannot  be  forbidden  by  Congress.” 

Referring  to  the  views  expressed  by  Mr.  Calhoun  and 
other  Senators  in  the  Senate  in  1836,  stated  above,  the 
.Judge  said  as  follows  : 

“ It  is  evident  that  they  were  founded  upon  the  assumption  that  it  was 
competent  for  Congress  to  prohibit  the  transportation  of  newspapers  and 
pamphlets  over  postal  routes  in  any  other  way  than  by  mail ; and  of  course 
it  would  follow  that  if,  with  such  a prohibition,  the  transportation  in  the 
mail  could  also  be  forbidden,  the  circulation  of  the  documents  would  be 
destroyed  and  a fatal  blow  given  to  the  freedom  of  the  press.  But  we  do 
not  think  that  Congress  possesses  the  power  to  prevent  the  transportation 
in  other  ways,  as  merchandise,  of  matter  which  it  excludes  from  the 
mails.  To  give  efficiency  to  its  regulations  and  prevent  rival  postal  sys- 
tems,  it  may  perhaps  prohibit  the  carriage  by  others  for  hire  over  postal 
routes  of  articles  which  legitimately  constitute  mail  matter,  in  the  sense 
in  which  those  terms  were  used  when  the  Constitution  was  adopted — con- 
sisting of  letters,  and  of  newspapers  and  pamphlets  when  not  sent  as  mer- 
chandise— but  further  than  this  its  power  of  prohibition  cannot  extend. 

" Whilst  regulations  excluding  matter  from  the  mail  cannot  be  enforced 
in  a way  which  would  require  or  permit  an  examination  into  letters  or 
sealed  packages  subject  to  letter  postage,  without  warrant  issued  upon 
oath  or  affirmation,  in  the  search  for  prohibited  matter,  they  may  be  en- 
forced upon  competent  evidence  of  their  violation  obtained  in  other  ways, 
as  from  the  parties  receiving  the  letters  or  packages,  or  from  agents  de- 


124 


positing  them  in  the  post-office,  or  others  cognizant  of  the  facts.  And  as 
to  objectionable  printed  matter,  which  is  open  to  examination,  the  regu- 
lations may  be  enforced  in  a similar  way,  by  the  imposition  of  penalties 
for  their  violation  through  the  courts;  and  in  some  cases,  by  the  direct 
action  of  the  officers  of  the  postal  service.  In  many  instances  those  offi- 
cers can  act  upon  their  own  inspection,  and  from  the  nature  of  the  case 
must  act  without  other  proof,  as  where  the  postage  is  not  prepaid,  or 
where  there  is  an  excess  of  weight  over  the  amount  prescribed,  or  where 
the  object  is  exposed  and  shows  unmistakably  that  it  is  prohibited,  as  in 
the  case  of  an  obscene  picture  or  print.  In  such  cases,  no  difficulty 
arises,  and  no  principle  is  violated,  in  excluding  the  prohibited  articles 
or  refusing  to  forward  them.  The  evidence  respecting  them  is  seen  by 
every  one  and  is  in  its  nature  conclusive.” 


The  Fourteenth  Amendment  and  the  Slaughter-house 

Cases. — Equality  of  Right  in  the  pursuit  of  any  Law- 
ful Trade  or  Avocation  Maintained.  , 

The  institution  of  slavery,  with  the  irritations  and  re- 
proaches to  which  it  gave  rise  between  the  States,  where 
it  existed,  and  the  free  States,  was  the  cause  of  the  civil 
war.  Its  extinction  was  the  natural  consequence  of  the 
success  of  the  forces  of  the  Union.  The  Constitutional 
amendment,  which  destroyed  it,  declared  that  “ neither 
slavery  nor  involuntary  servitude,  except  as  a punishment 
for  crime,  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States  or  any  place 
Subject  to  their  jurisdiction.”  It  thus  not  only  abolished 
the  existing  institution,  hut  forever  prohibits  its  future  es- 
tablishment. And  by  its  comprehensive  language  it  em- 
braces not  merely  slavery  of  the  African  race,  as  it  pre- 
viously existed,  but  involuntary  servitude  in  any  form — 
peonage,  v ill  an  age,  serfage,  and  all  other  modes  by  which 
man  can  be  subjected  to  compulsory  labor  for  the  pleasure, 
profit,  or  caprice  of  others.  It  was  intended  to  make  every 
one  within  the  jurisdiction  of  the  United  States  a free 
man,  and  as  such  to  allow  him  to  pursue  his  happiness  by 
the  ordinary  avocations  of  life  upon  the  same  terms  and 
conditions  as  others. 


To  give  effect  to  this  purpose  of  the  amendment,  Con- 
gress, soon  after  its  adoption,  passed  the  civil  rights  act. 
The  amendment  was  ratified  on  the  18th  of  December 
1865,  that  is,  the  official  proclamation  of  its  ratification  was 
made  on  that  day.  In  April  of  the  following  year  the  civil 
rights  act  was  passed.  Its  first  section  is  as  follows:  “Be  it 
enacted,  ^c.,  That  all  persons  born  in  the  United  States  and 
not  subject  to  any  foreign  power,  excluding  Indians  not 
taxed,  are  hereby  declared  to  be  citizens  of  the  United 
States,  and  such  citizens,  of  every  race  and  color,  without 
regard  to  any  previous  condition  of  slavery  or  involuntary 
servitude,  except  as  a punishment  for  crime,  whereof  the 
party  shall  have  been  duly  convicted,  shall  have  the  same 
right,  in  every  State  and  Territory  in  the  United  States, 
to  make  and  enforce  contracts,  to  sue,  be  parties,  and  give 
evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and  convey 
real  and  personal  property,  and  to  full  and  equal  benefit 
of  all  laws  and  proceedings  for  the  security  of  person  and 
property,  as  is  enjoyed  by  white  citizens,  and  shall  be  sub- 
ject to  like  punishment,  pains,  and  penalties,  and  to  none 
other,  any  law,  statute,  ordinance,  regulation,  or  custom 
to  the  contrary  notwithstanding.” 

The  other  sections  of  the  act  are  designed  to  secure  the 
rights  thus  declared.* 

The  bill  for  this  act  was  earnestly  discussed  in  Congress 
and  its  validity  was  violently  assailed.  On  the  one  hand 
it  was  contended  that  the  amendment  was  only  designed 
to  do  way  with  slavery  of  the  colored  race,  and,  except  as 
it  affected  that  institution,  it  left  all  the  powers  of  the 
State  untouched,  with  a right  in  its  legislation  to  discrim- 
inate against  persons  of  that  race  and  others.  On  the  other 
hand  it  was  insisted  that  the  amendment  was  intended  to 
secure  to  all  persons  equality  of  civil  rights.  Senator 
Trumbull  drew  the  bill  and  introduced  it  into  the  Senate, 
and  in  opening  the  discussion  upon  it  in  that  body  stated 


* 14  Statutes-at- Large,  27. 


126 


that  the  object  of  the  measure  was  to  give  effect  to  the 
declaration  of  the  amendment,  observing  that  there  was 
very  little  importance  in  the  general  declaration  of  ab- 
stract truths  and  principles  unless  they  could  be  carried 
into  effect; — unless  the  persons  who  were  to  be  affected 
by  them  had  some  means  of  availing  themselves  of  their 
benefits;  that  the  first  section  of  the  bill  proposed  declared 
what  were  the  rights  of  all  persons;  that  the  other  sections 
contained  the  necessary  machinery  to  give  effect  to  them; 
and  that  if  Congress  had  not  authority  to  give  practical 
etfiect  to  the  great  declaration  that  slavery  shall  not  exist 
in  the  United  States,  by  a bill  of  that  kind,  nothing  would 
be  accomplished  by  the  adoption  of  the  constitutional 
amendment. 

The  Senator  then  referred  to  the  clause  of  the  Consti- 
tution which  declares  that  “ the  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  in 
the  several  States,”  and  asked,  “ What  rights  are  secured 
to  the  citizens  of  each  State  under  that  provision  ? ” And 
he  answered,  “ Such  fundamental  rights’ as  belong  to  every 
free  person;  ” citing  from  Story  the  statement  that  the  in- 
tention of  this  clause  was  to  confer  on  citizens,  if  one  may 
so  say,  a general  citizenship,  and  to  communicate  all  the 
privileges  and  immunities  which  the  citizens  of  the  same 
State  would  be  entitled  to  under  the  like  circumstances. 
He  also  quoted  with  special  approval  the  language  of 
Judge  Washington,  in  Corfield  vs.  Coryell,  that  by  the 
expression  privileges  and  immunities  of  citizens,  as  here 
used,  were  meant  those  privileges  and  immunities  which 
are  in  their  nature  fundamental,  and  belong  of  right  to 
the  citizens  of  all  free  governments.  He  added  that  the 
people  of  the  insurgent  States  had  not  regarded  the  col- 
ored race  as  citizens,  and  on  that  principle  many  of  their 
laws  making  discriminations  between  the  whites  and  the 
colored  people  were  based,  and  said  : “ But  it  is  competent 
for  Congress  to  declare,  under  the  Constitution  of  the 
United  States,  who  are  citizens.  If  there  were  any  ques- 


tion  about  it,  it  would  be  settled  by  the  passage  of  a law 
declaring  all  persons  born  in  the  United  States  to  be  citi- 
zens thereof.  That  this  bill  proposes  to  do.  Then  they 
will  be  entitled  to  the  rights  of  citizens.  And  what  are 
they  ? The  great  fundamental  rights  set  forth  in  this  bill: 
the  right  to  acquire  property,  the  right  to  go  and  come  at 
pleasure,  the  right  to  enforce  rights  in  the  courts,  to  make 
contracts,  and  to  inherit  and  dispose  of  property.  These 
are  the  very  rights  that  are  set  forth  in  this  bill  as  apper- 
taining to  every  freeman.” 

Other  Senators  expressed  similar  views  in  advocating 
the  measure.  The  bill  was  passed  in  both  Houses  of  Con- 
gress by  a large  majority,  but  it  was  vetoed  by  the  Presi- 
dent; it  was  then  passed  over  the  veto  by  the  required 
two-thirds  vote.  But.  notwithstanding  its  passage  by  a 
large  majority  of  both  Houses,  and  over  the  veto  of  the 
President,  grave  doubts  of  its  constitutionality  were  enter- 
tained by  men  of  distinguished  ability,  many  of  whom 
were  not  hostile  to  its  object.  In  some  of  the  State  courts 
also  its  validity  was  denied;  and  in  others,  able  judges 
dissented  from  judgments  recognizing  its  obligation. 
Complaints  also  were  made  that,  notwithstanding  the 
amendment  abolishing  slavery  and  involuntary  servitude, 
except  for  crime,  the  lTeedmen  in  some  of  the  insurrec- 
tionary States  were  subjected  to  burdens  and  disabilities 
in  the  acquisition  and  enjoyment  of  property  and  in  the 
pursuit  of  happiness,  which  to  a great  extent  destroyed  the 
value  of  their  freedom.  Hostile  sentiments  were  also  al- 
leged to  exist  towards  citizens  of  the  North  seeking  busi- 
ness or  residence  among  them,  and  towards  their  own  cit- 
izens who  adhered  to  the  government  of  the  Union  during 
the  war.  No  doubt  there  was  much  exaggeration  in  the 
complaints  of  these  things,  but  they  were  nevertheless  be- 
lieved to  be  well  founded.  To  remove  the  cause  of  them, 
and  to  obviate  at  the  same  time  the  grounds  of  objection 
to  the  validity  of  the  civil  rights  act,  or  to  similar  legisla- 
tion, and  prevent  hostile  and  discriminating  legislation 


128 


by  any  State  against  citizens  of  the  United  States,  and 
thus  secure  to  all  persons  within  the  jurisdiction  of  every 
State  the  equal  protection  of  its  laws,  the  fourteenth 
amendment  was  brought  forward  and  adopted.  This  pur- 
pose was  avowed  in  all  the  discussions  of  the  measure  in 
both  Houses  of  Congress.  A very  instructive  and  able 
article  upon  this  subject,  by  William  L.  Royall,  Esq.,  of 
Richmond,  Ya.,  is  found  in  the  number  of  the  Southern 
Law  Review  for  October  and  November  of  1878,  in  which 
he  shows  by  citations  from  the  remarks  of  every  one  who 
participated  in  the  debate,  that  it  was  the  purpose  of  its 
framers  and  advocates  to  obviate  objections  to  legislation 
similar  to  that  contained  in  the  civil  rights  act. 

At  the  session  of  Congress  following  the  adoption  of  the 
amendment  abolishing  slavery  and  involuntary  servitude, 
propositions  for  further  amendments  were  numerous.  All 
of  them  were  sent  to  a committee  of  the  two  Houses  on 
Reconstruction,  consisting  of  fifteen,  of  whom  Mr.  Fes- 
senden was  chairman  on  the  part  of  the  Senate,  and  Mr. 
Thaddeus  Stevens  on  the  part  of  the  House.  That  com- 
mittee reported  on  the  30th  of  April,  I860,  as  the  result 
of  their  deliberations,  in  the  form  of  a joint  resolution,  an 
amendment  to  the  Constitution.  As  it  came  from  the 
committee  the  first  section  of  the  proposed  amendment 
was  as  follows  : 

“ No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws.” 

The  second  section  provided  the  basis  of  representation; 
the  third  declared  that  no  person  who  had  voluntarily 
aided  the  late  insurrection  should  have  the  right  to  vote 
for  representatives  in  Congress,  or  for  electors  for  Presi- 
dent and  Vice-President,  until  July  4,1870;  the  fourth 
prohibited  the  payment  of  the  Confederate  debt;  and  the 
fifth  provided  that  Congress  should  have  power  to  en- 


129 


force  the  provisions  of  the  article  by  appropriate  legis- 
lation. 

The  resolution  was  first  brought  forward  in  the  House., 
the  Senate  awaiting  its  action.  The  principal  debate  was 
on  the  third  section,  which  was  not  thought  to  be  suffi- 
ciently punitive.  It,  however,  was  adopted  without  altera- 
tion. Mr.  Stevens  opened  the  discussion  and  said  : 

“ The  first  section  prohibits  the  States  from  abridging  the  privileges 
and  immunities  of  citizens  of  the  United  States,  or  unlawfully  depriving 
them  of  life,  liberty,  or  property,  or  of  denying  to  any  person  within 
their  jurisdiction  the  ‘equal’  protection  of  the  laws.  I can  hardly  be- 
lieve that  any  person  can  be  found  who  will  not  admit  that  every  one  of 
these  provisions  is  just.  They  are  all  asserted,  in  some  form  or  other,  in 
our  Declaration  or  organic  law.  But  the  Constitution  limits  only  the 
action  of  Congress,  and  is  not  a limitation  on  the  States.  This  amend- 
ment supplies  that  defect,  and  allows  Congress  to  correct  the  unjust 
legislation  of  the  States,  so  far  that  the  law  which  operates  upon  one  man 
shall  operate  equally  upon  all.” 

Mr.  Fink,  a Democrat,  followed  Mr.  Stevens,  and  made 
the  point  that  the  first  section  was,  in  substance,  the  civil 
rights  bill  which  Congress  had  just  passed  over  the  Presi- 
dent’s veto;  and  that  by  voting  to  so  amend  the  Constitu- 
tion of  the  United  States  as  to  put  the  civil  rights  bill  into 
it  was  the  same  thing  as  to  admit  that  the  civil  rights  bill 
was  unconstitutional. 

To  this  Fir.  Garfield  replied  : 

“I  am  glad  to  see  this  first  section  here,  which  purposes  to  hold  over 
every  American  citizen,  without  regard  to  color,  the  protecting  shield  of 
law.  The  gentleman  who  has  just  taken  his  seat  undertakes  to  show 
that  because  we  propose  to  vote  for  this  section  we  therefore  acknowledge 
that  the  civil  rights  bill  was  unconstitutional.  He  was  anticipated  in 
that  objection  by  the  gentleman  from  Pennsylvania  (Mr.  Stevens).  The 
civil  rights  bill  is  now  a part  of  the  law  of  the  land.  But  every  gentle- 
man knows  it  will  cease  to  be  a part  of  the  law  whenever  the  sad  moment 
arrives  when  that  gentleman’s  party  comes  into  power.  It  is  precisely 
for  that  reason  that  we  propose  to  lift  that  great  and  good  law  above  the 
reach  of  political  strife,  beyond  the  reach  of  plots  and  machinations  of 
any  party,  and  fix  it  in  the  serene  sky,  in  the  eternal  firmament  of  the 
Constitution,  where  no  storm  of  passion  can  shake  it,  and  no  cloud  can 
obscure  it.  For  this  reason,  and  not  because  I believe  the  civil  rights  bill 
unconstitutional,  I am  glad  to  see  that  first  section  here.” 

9 


Mr.  Thayer,  a Republican,  in  the  course  of  his  remarks 
said  : 

“ With  regard  to  the  first  section  of  the  proposed  amendment  to  the 
Constitution,  it  simply  brings  into  the  Constitution  what  is  found  in  the 
bill  of  rights  of  every  State  of  the  Union  ; as  I understand  it,  it  is  but 
incorporating  in  the  Constitution  of  the  United  States  the  principle  of 
the  civil  rights  bill  which  has  lately  become  a law,  and  that  not,  as  the 
gentleman  from  Ohio  (Mr.  Fink)  suggested,  because,  in  the  estimation  of 
this  House,  that  law  cannot  be  sustained  as  constitutional,  but  in  order, 
as  was  justly  said  by  the  gentleman  from  Ohio  who  last  addressed  the 
House  (Mr.  Garfield),  that  that  provision,  so  necessary  for  the  equal  ad- 
ministration of  the  law,  so  just  in  its  operation,  so  necessary  for  the  pro- 
tection of  the  fundamental  rights  of  citizenship,  shall  be  forever  incorpo- 
rated in  the  Constitution  of  the  United  States.” 

The  language  of  all  the  other  speakers  in  the  House 
was  to  the  same  purport.  The  first  section  of  the  pro- 
posed amendment  passed  the  House  as  it  came  from  the 
committee,  and  it  thus  went  to  the  Senate.  The  health  of 
Mr.  Fessenden,  the  chairman  of  the  committee  of  the 
Senate,  disabled  him  from  taking  charge  of  the  resolution, 
and  it  was  entrusted  to  the  custody  of  Mr.  Howard,  Sena- 
tor from  Michigan.  In  his  opening  speech,  explaining  the 
various  sections  and  defining  as  far  as  he  was  able  the 
privileges  and  immunities  of  a citizen  of  the  United  States, 
comprising  as  well  those  which  he  had  as  a citizen  of  the 
State  as  those  which  he  had  as  a citizen  of  the  United 
States,  he  said  : 

“The,  great  object  of  the  first  section  of  this  amendment  is,  therefore, 
to  restrain  the  power  of  the  States  and  compel  them  at  all  times  to  re- 
spect their  fundamental  guarantees.” 

It  is  to  be  observed  that  the  resolution,  as  reported  from 
the  committee  and  discussed  in  the  House  and  in  the  Sen- 
ate, did  not  have  the  clause  defining  citizenship  of  the 
United  States.  It  opened  with  the  provision  “ Uo  State 
shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States,” 
and  it  is  plain  that  no  one  who  either  favored  or  opposed 
the  amendment  understood  that  in  that  form  it  was  de- 
signed to  protect  only  the  rights  of  citizens  of  the  United 

i 


131 


States,  and  not  the  rights  of  citizens  of  the  State.  The 
provision  defining  citizenship  of  the  United  States  was 
offered  by  the  Senator  from  Michigan,  after  the  resolution 
had  passed  the  House  and  been  under  discussion  in  the 
Senate  for  several  days.  .In  the  House,  Mr.  Bingham,  of 
Ohio,  had  contended  that  the  civil  rights  bill  was  uncon- 
stitutional, arguing  that  the  rights  of  citizens  which  it  un- 
dertook to  protect  were  left  by  the  Constitution  to  the  pro- 
tection of  the  States,  and  that  Congress  had  no  right  to 
legislate  on  the  subject.  Attention  was  also  called  to  the 
fact  that  the  act  made  negroes  citizens  of  the  United  States, 
whereas  the  Supreme  Court  had  decided  in  the  Bred  Scott 
case  that  no  person  of  African  descent  could  become  such 
a citizen.  The  clause  as  to  citizenship  was  added  to  the 
proposed  amendment  in  order  to  obviate  these  objections. 
Xo  one  intimated  during  the  whole  debate  that  its  purpose 
was  to  qualify  in  any  respect  the  subsequent  general  lan- 
guage of  the  amendment. 

There  was  a perfect  unanimity  of  opinion  between  Sena- 
tors and  Representatives,  Democrats  and  Republicans,  that, 
the  purpose  of  the  first  section  was  to  incorporate  the  civil 
rights  bill  into  the  Constitution,  or  rather  to  authorize  leg- 
islation of  a similar  character  and  thus  obviate  the  objec- 
tions that  had  been  made  to  that  bill  on  account  of  the 
supposed  limitation  of  the  amendment  abolishing  slavery 
and  the  Dred  Scott  decision.  The  Republicans  contended 
for  the  adoption  of  the  amendment  because  such  was  its 
purpose  and  would  be  its  effect ; the  Democrats  opposed 
it  for  the  same  reason.  All  agreed  in  declaring  its  pur- 
pose; and  there  was  no  difference  in  their  understanding 
of  it  after  the  declaration  of  citizenship  was  added  to  the 
amendment  from  what  it  was  previously.  Xo  one  sup- 
posed that  this  addition  limited  or  changed  the  character 
of  rights  which  were  to  be  protected. 

The  amendment,  in  its  present  form,  passed  both  Houses 
of  Congress  by  large  majorities,  and  was  ratified  by  the 
States  on  the  28th  of  July,  1868;  that  is  to  say,  on  that 
day  the  proclamation  of  its  ratification  was  made. 


132 


The  first  cases  under  this  amendment  which  came  be- 
fore the  Supreme  Court  grew  out  of  an  act  of  the  Legis- 
lature of  the  State  of  Louisiana,  entitled  “An  act  to  protect 
the  health  of  the  city  of  New  Orleans,  to  locate  the  stock- 
landings  and  slaughter-houses,  find  to  incorporate  ‘ The 
Crescent  City  Live-Stock  Landing  and  Slaughter-House 
Company,’  ” which  was  approved  on  the  8th  of  March, 
1869,  and  Avent  into  operation  the  1st  of  June  following. 
The  act  created  the  corporation  mentioned  in  its  title, 
which  was  composed  of  seventeen  persons  designated  by 
name,  and  invested  them  and  their  successors  with  the 
powers  usually  conferred  upon  corporations,  and  certain 
special  and  exclusive  privileges. 

It  first  declared  that  it  should  not  he  lawful,  after  the 
1st  day  of  June,  1869,  to  land,  keep,  or  slaughter  any 
animals,  or  to  ha\Te,  keep,  or  establish  any  stock-landing, 
yards,  slaughter-houses,  or  abattoirs  within  the  city  of  New 
Orleans,  or  the  parishes  of  Orleans,  Jefferson,  and  St.  Ber- 
nard, except  as  provided  in  the  act,  and  imposed  a penalty 
of  $250  for  each  violation  of  its  provisions. 

The  act  then  authorized  the  corporation  to  establish  and 
erect,  within  the  parish  of  St.  Bernard  and  the  corporate 
limits  of  New  Orleans,  at  a designated  place,  (which  was 
on  the  river  below  the  occupied  portions  of  the  city,) 
wharves,  stables,  sheds,  yards,  and  buildings  necessary  to 
land,  stable,  shelter,  protect,  and  preserve  all  kinds  of 
horses,  mules,  cattle,  and  other  animals,  and  provided  that 
animals  destined  for  sale  or  slaughter  in  the  city  of  New 
Orleans  or  its  environs,  should  be  landed  at  the  wharves  and 
yards  of  this  company  and  be  there  yarded,  sheltered,  and 
protected,  if  necessary;  and  that  the  company  should  be 
entitled  to  certain  prescribed  fees  for  the  use  of  its  Avliarves 
and  for  each  animal  landed,  and  be  authorized  to  detain 
the  animals  until  the  fees  were  paid,  and  if  not  paid  within 
fifteen  days  to  take  proceedings  for  their  sale.  Every 
person  violating  any  of  these  provisions,  or  landing,  yard- 
ing, or  keeping  animals  elsewhere  Avas  subjected  to  a fine 
of  $250. 


183 


The  act  then  required  the  corporation  to  erect  a grand 
slaughter-house  of  sufficient  dimensions  to  accommodate 
all  butchers,  in  which  five  hundred  animals  might  be 
slaughtered  a day,  with  a sufficient  number  of  sheds  and 
stables  for  the  stock  received  at  the  port  of  New  Orleans, 
and  provided  that  when  these  buildings  were  completed 
and  thrown  open  for  use,  public  notice  should  be  given 
for  thirty  days,  and  within  that  time  all  other  stock-land- 
ings and  slaughter-houses  within  the  parishes  of  Orleans, 
Jefferson,  and  St.  Bernard  were  to  be  closed,  and  it  should 
no  longer  be  lawful  to  slaughter  animals  in  them,  the 
meat  of  which  was  destined  for  sale  within  those  parishes. 

The  act  then  provided  that  the  company  should  receive 
for  every  animal  slaughtered  in  its  buildings  certain  pre- 
scribed fees,  besides  the  head,  feet,  gore,  and  entrails  of 
all  animals,  except  of  swine. 

Other  provisions  of  the  act  required  the  inspection  of 
the  animals  before  they  were  slaughtered.  The  exclusive 
privileges  mentioned  were  granted  for  the  period  of  twenty- 
five  years.  The  language  of  the  act  was  that  the  corpora- 
tion should  “have  the  sole,  and  exclusive  privilege,  of  con- 
ducting and  carrying  on  the  live-stock  landing  and  slaugh- 
ter-house business,  within  the  limits  and  privileges  granted 
by  the  provisions  of  the  act and,  after  the  1st  of  June, 
1869,  should  have  “ the  exclusive  'privilege  of  having  landed 
at  their  landing  places  all  animals  intended  for  sale  or 
slaughter  ” in  the  parishes  of  Orleans  and  Jefferson,  and 
“ the  exclusive  privilege  of  having  slaughtered”  in  its  slaugh- 
ter-houses all  animals  the  meat  of  which  was  intended  for 
sale  in  these  parishes. 

The  character  of  these  special  privileges  will  be  better 
understood  when  the  extent  of  country  and  of  population 
which  they  affected  are  stated.  The  parish  of  Orleans  con- 
tains an  area  of  country  of  150  square  miles  ; the  parish 
of  Jefferson,  384  square  miles;  and  the  parish  of  St.  Ber- 
nard, 620  square  miles.  The  three  parishes  together  con- 
tain an  area  of  1,154  square  miles,  and  they  had  a popu- 
lation of  between  two  and  three  hundred  thousand  people. 


134 


Previous  to  the  passage  of  the  act  there  were  more  than 
a thousand  persons  in  the  territory  mentioned  who  sup- 
ported themselves  and  their  families  by  the  business  of 
procuring,  preparing,  and  selling  animal  food,  but  by  the 
act  in  question  they  were  all  deprived  of  the  business  in 
which  they  were  thus  engaged,  or  subjected  to  onerous 
conditions  in  its  prosecution. 

Three  cases  were  brought  involving  the  validity  of  this 
legislation.  The  first  was  brought  by  an  association  of 
butchers  to  prevent  the  assertion  and  enforcement  of  the 
privileges.  One  was  brought  by  the  attorney-general  of 
the  State  to  protect  the  corporation  in  the  enjoyment  of 
those  privileges,  and  to  prevent  an  association  of  stock- 
dealers  and  butchers  from  acquiring  a tract  of  land  in  the 
same  district  with  the  corporation,  upon  which  to  erect 
suitable  buildings  for  receiving,  keeping,  and  slaughtering 
cattle  and  preparing  animal  food  for  market.  The  third 
case  was  brought  by  the  corporation  itself  to  restrain  the 
defendants  from  carrying  on  a business  similar  to  its  own, 
in  violation  of  its  alleged  exclusive  privileges. 

The  substance  of  the  averments  of  the  parties  complain- 
ing of  this  legislation  was,  that  prior  to  its  adoption  they 
were  engaged  in  the  lawful  and  necessary  business  of  pro- 
curing and  bringing  to  the  parishes  mentioned  animals 
suitable  for  human  food,  and  in  preparing  such  food  for 
market;  that  in  the  prosecution  of  their  business  they  had 
provided  in  those  parishes  suitable  establishments  for  land- 
ing, sheltering,  keeping,  and  slaughtering  cattle,  and  the 
sale  of  meat;  that  with  their  association  about  four  hun- 
dred persons  were  connected,  and  that  in  the  parishes 
named  about  a thousand  persons  were  engaged  in  procur- 
ing, preparing,  and  selling  animal  food.  And  they  com- 
plained that  the  business  of  landing,  yarding,  and  keep- 
ing, within  the  parishes  named,  cattle  intended  for  sale  or 
slaughter,  which  was  lawful  for  them  to  pursue  before  the 
1st  day  of  June,  1869,  was  made  by  that  act  unlawful  for 
any  one  except  the  corporation  named;  and  that  the  busi- 


135 


ness  of  slaughtering  cattle  and  preparing  animal  food  for 
market,  which  it  was  lawful  for  them  to  pursue  in  those 
parishes  before  that  day,  was  made  by  that  act  unlawful 
for  them  to  pursue  afterwards,  except  in  the  buildings  of 
the  company,  and  upon  payment  of  certain  prescribed 
fees,  and  a surrender  of  a valuable  portion  of  each  animal 
slaughtered.  And  they  contended  that  the  lawful  business 
of  landing, yarding,  sheltering,  and  keeping  cattle  intended 
for  sale  or  slaughter,  which  they,  in  common  with  every 
individual  in  the  community  of  the  three  parishes,  had  a 
right  to  follow,  could  not.  be  thus  taken  from  them  and 
given  over  for  a period  of  twenty -five  years  for  the  sole 
and  exclusive  enjoyment  of  a corporation  of  seventeen 
persons,  or  of  anybody  else.  And  they  also  contended 
that  the  lawful  and  necessary  business  of* slaughtering  cat- 
tle and  preparing  animal  food  for  market,  which  they  and 
all  other  individuals  had  a right  to  follow,  could  not  be 
thus  restricted,  within  this  territory  of  1,154  square  miles, 
to  the  buildings  of  this  corporation,  or  be  subjected  to 
tribute  for  the  emolument  of  that  body. 

The  Supreme  Court  of  the  State  of  Louisiana  held  the 
act  constitutional  and  gave  judgment  in  all  the  cases  for 
the  protection  of  the  exclusive  privileges  of  the  corpora- 
tion. The  cases  were  then  brought  to  the  Supreme  Court 
of  the  United  States  and  were  there  twice  argued  with 
great  ability;  Judge  Campbell,  formerly  a member  of  the 
court,  and  Mr.  F ellowes  appearing  against  the  act;  and  Sen- 
ator Carpenter  and  Mr.  Durant  for  the  corporation.  The 
exclusive  privileges  were  assailed  as  being  in  conflict  with 
the  13th  amendment,  and  also  with  the  inhibition  of  the 
14th  amendment,  declaring  that  “No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States.” 

The  Supreme  Court,  by  a vote  of  five  of  its  members 
against  four,  affirmed  the  judgment  of  the  Louisiana  court, 
holding  that  the  legislation  of  Louisiana  gave  no  special 
privileges  which  the  State  could  not  grant,  and  that  the 


136 


fourteenth  amendment  only  inhibited  an  invasion  by 
the  States  of  the  rights  of  citizens  of  the  United  States  as 
distinguished  from  those  of  citizens  of  the  State.  Judges 
Clifford,  Davis,  Strong,  Miller,  and  Hunt  composed  the 
majority.  Chief  Justice  Chase  and  Judges  Swayne,  Field, 
and  Bradley  dissented  from  this  view.  Judge  Miller  wrote 
the  opinion  of  the  majority.  Judges  Field,  Bradley,  and 
Swayne  each  wrote  a dissenting  opinion.  The  Chief  Jus- 
tice concurred  with  Judge  Field,  as  did  also  Judges  Swayne 
and  Bradley,  although  they  each  wrote  a separate  opinion. 

Both  the  majority  and  minority  not  only  considered  the 
claim  made  that  the  legislation  of  Louisiagfa  was  to  he  re- 
garded as  the  exercise  of  the  police  power  of  the  State;  hut 
they  gave  an  extended  examination  to  the  inhibition  men- 
tioned contained'in  the  fourteenth  amendment. 

As  to  the  police  power,  the  majority  were  of  opinion  that 
the  legislation  of  Louisiana  was  passed  in  its  legitimate  ex- 
ercise, and  made  reference  to  the  necessity  of  having  the 
landing  of  live-stock  in  large  droves  from  steamboats  on 
the  bank  of  the  river  and  from  railroad  trains  limited  to 
particular  places,  so  as  to  secure  the  safety  and  comfort 
of  the  people  of  the  city;  and  observed  that  it  could  not 
be  “injurious  to  the  general  community  that  while  the  duty 
of  making  ample  preparation  for  this  is  imposed  upon  a few 
men,  or  a corporation,  they  should,  to  enable  them  to  do 
it  successfully,  have  the  exclusive  right  of  providing  such 
landing  places,  and  receiving  a fair  compensation  for  the 
service.” 

And  as  to  the  slaughter-house  privilege,  they  said,  speak- 
ing through  Judge  Miller: 

“ It  is  not,  and  cannot  be  successfully  controverted,  that  it  is  both  the 
right  and  the  duty  of  the  legislative  body — the  supreme  power  of  the 
State  or  municipality — to  prescribe  and  determine  the  localities  where 
the  business  of  slaughtering  for  a great  city  may  he  conducted.  To  do 
this  effectively  it  is  indispensable  that  all  persons  who  slaughter  animals 
for  food  shall  do  it  in  those  places  and  no  where  else.  The  statute  under 
consideration  defines  these  localities  and  forbids  slaughtering  in  any 
other.  It  does  not,  as  has  been  asserted,  prevent  the  butcher  from  doing 


his  own  slaughtering.  On  the  contrary,  the  Slaughter-House  Company 
is  required,  under  a heavy  penalty,  to  permit  any  person  who  wishes  to 
do  so,  to  slaughter  in  their  houses,  and  they  are  bound  to  make  ample 
provision  for  the  convenience  of  all  the  slaughtering  for  the  entire  city. 
The  butcher,  then,  is  still  permitted  to  slaughter,  to  prepare,  and  to  sell 
his  own  meats  : but  he  is  required  to  slaughter  at  a specified  place  and  to 
pay  a reasonable  compensation  for  the  use  of  the  accommodations  fur- 
nished him  at  that  place. 

AT  he  wisdom  of  the  monopoly  granted  by  the  legislature  may  be  open 
to  question,  but  it  is  difficult  to  see  a justification  for  the  assertion  that 
the  butchers  are  deprived  of  the  right  to  labor  in  their  occupation,  or  the 
people  of  their  daily  service  in  preparing  food,  or  how  this  statute,  with 
the  duties  and  guards  imposed  upon  the  company,  can  be  said  to  destroy 
the  business  of  the  butcher,  or  seriously  interfere  with  its  pursuit.  The 
power  here  exercised  by  the  Legislature  of  Louisiana  is,  in  its  essential 
nature,  one  which  has  been,  up  to  the  present  period  in  the  constitutional 
history  of  this  country,  always  conceded  to  belong  to  the  States,  however 
it  may  now  be  questioned  in  some  of  its  details.” 

He  then  cites  from  Kent  and  Shaw  as  to  the  extent  of 
that  power,  and  continues  : 

“ This  power  is,  and  must  be,  from  its  very  nature,  incapable  of  any 
very  exact  definition  or  limitation.  Upon  it  depends  the  security  of  so- 
cial order,  the  life  and  health  of  the  citizen,  the  comfort  of  an  existence 
in  a thickly  populated  community,  the  enjoyment  of  private  and  social 
life,  and  the  beneficial  use  of  property.  ' It  extends,'  says  another  eminent 
judge,  ' to  the  protection  of  the  lives,  limbs,  health,  comfort,  and  quiet  of 
all  persons,  and  the  protection  of  all  property  within  the  State ; . . . and 
persons  and  property  are  subjected  to  all  kinds  of  restraints  and  burdens 
in  order  to  secure  the  general  comfort,  health,  and  prosperity  of  the  State. 
Of  the  perfect  right  of  the  legislature  to  do  this  no  question  ever  was,  or, 
upon  acknowledged  general  principles,  ever  can  be  made,  so  far  as  natural 
persons  are  concerned.’  ” 

To  this  proposition  the  minority  of  the  court  replied, 
speaking  through  Judge  Field  : 

“ That  power  [the  police  power  of  the  State]  undoubtedly  extends  to 
all  regulations  affecting  the  health,  good  order,  morals,  peace,  and  safety 
of  society,  and  is  exercised  on  a great  variety  of  subjects,  and  in  almost 
numberless  ways.  All  sorts  of  restrictions  and  burdens  are  imposed 
under  it,  and  when  these  are  not  in  conflict  with  any  constitutional  pro- 
hibitions or  fundamental  principles,  they  cannot  be  successfully  assailed 
in  a judicial  tribunal.  With  this  power  of  the  State  and  its  legitimate 
exercise  I shall  not  differ  from  the  majority  of  the  court.  But  under  the 
pretence  of  prescribing  a police  regulation  the  State  cannot  be  permitted 
to  encroach  upon  any  of  the  just  rights  of  the  citizen,  which  the  Consti- 
tution intended  to  secure  against  abridgment. 


138 


“ In  the  law  in  question  there  are  only  two  provisions  which  can  prop- 
erly be  called  police  regulations —the  one  which  requires  the  landing  and 
slaughtering  of  animals  below  the  city  of  New  Orleans,  and  the  other 
which  requires  the  inspection  of  the  animals  before  they  are  slaughtered. 
When  these  requirements  are  complied  with  the  sanitary  purposes  of  the 
act  are  accomplished.  In  all  other  particulars  the  act  is  a mere  grant  to 
a corporation  created  by  it  of  special  and  exclusive  privileges  by  which 
the  health  of  the  city  is  in  no  way  promoted.  It  is  plain  that  if  the 
corporation  can,  without  endangering  the  health  of  the  public,  carry  on 
the  business  of  landing,  keeping,  and  slaughtering  cattle  within  a district 
below  the  city  embracing  an  area  of  over  a thousand  square  miles,  it 
would  not  endanger  the  public  health  if  other  persons  were  also  per- 
mitted to  carry  on  the  same  business  within  the  same  district  under 
similar  conditions  as  to  the  inspection  of  the  animals.  The  health  of  the 
city  might  require  the  removal  from  its  limits  and  suburbs  of  all  build- 
ings for  keeping  and  slaughtering  cattle,  but  no  such  object  could  possi- 
bly justify  legislation  removing  such  buildings  from  a large  part  of  the 
Slate  for  the  benefit  of  a single  corporation.  The  pretence  of  sanitary 
regulations  for  the  grant  of  the  exclusive  privileges  is  a shallow  one, 
which  merits  only  this  passing  notice. 

“ The  act  of  Louisiana  presents  the  naked  case,  unaccompanied  by  any 
public  considerations,  where  a right  to  pursue  a lawful  and  necessary 
calling,  previously  enjoyed  by  every  citizen,  and  in  connection  with  which 
a thousand  persons  were  daily  employed,  is  taken  away  and  vested  ex- 
clusively for  twenty-five  years,  for  an  extensive  district  and  a large  pop- 
ulation, in  a single  corporation,  or  its  exercise  is  for  that  period  restricted 
to  the  establishments  of  the  corporation,  and  there  allowed  only  upon 
onerous  conditions. 

“ If  exclusive  privileges  of  this  character  can  be  granted  to  a corpora- 
tion of  seventeen  persons,  they  may,  in  the  discretion  of  the  legislature, 
be  equally  granted  to  a single  individual.  If  they  may  be  granted  for 
twenty-five  years  they  may  be  equally  granted  for  a century,  and  in  per- 
petuity. If  they  may  be  granted  for  the  landing  and  keeping  of  animals 
intended  for  sale  or  slaughter  they  may  be  equally  granted  for  the  landing 
and  storing  of  grain  and  other  products  of  the  earth,  or  for  any  article  of 
commerce.  If  they  may  be  granted  for  structures  in  which  animal  food 
is  prepared  for  market  they  may  be  equally  granted  for  structures  in 
which  farinaceous  or  vegetable  food  is  prepared.  They  may  be  granted 
for  any  of  the  pursuits  of  human  industry,  even  in  its  most  simple  and 
common  forms.  Indeed,  upon  the  theory  on  which  the  exclusive  privi- 
leges granted  by  the  act  in  question  are  sustained,  there  is  no  monopoly, 
in  the  most  odious  form,  which  may  not  be  upheld.” 

The  great  interest,  however,  manifested  in  the  opinions 
of  the  court,  both  in  that  of  the  majority  and  in  those  of 
the  minority,  arose  from  the  discussion  they  contained  as 


139 


to  tbe  import  and  meaning  of  the  inhibition  of  the  four" 
teenth  amendment. 

The  majority  held  that  the  State  was  authorized  to  con- 
fer the  special  privileges  unless  restrained  by  that  amend- 
ment. Its  first  section,  the  only  one  which  had  any  bear- 
ing upon  the  question  presented,  is  as  follows : “All  per- 
sons born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  Xo  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  prop- 
erty without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.” 

The  majority  of  the  court  in  their  opinion  first  give  a 
history  of  the  three  amendments  adopted  since  the  war, 
the  thirteenth,  fourteenth  and  fifteenth,  and  state  that  their 
pervading  purpose  was  the  freedom  of  the  slave  race,  the 
security  and  firm  establishment  of  their  freedom,  and 
the  protection  of  the  newly-made  freeman  and  citizen 
from  the  oppressions  of  those  who  had  formerly  exercised 
unlimited  dominion  over  them,  and  that  in  any  fair  and 
just  construction  of  any  section  or  phrase  of  the  amend- 
ments it  is  necessary  to  keep  this  pervading  purpose  in 
view'.  They  then  take  up  the  fourteenth  amendment  and 
observe  that  it  opens  with  a definition  of  citizenship,  not 
only  of  the  United  States,  but  of  the  States,  and  that  it 
recognizes  and  establishes  a distinction  between  the  twro. 
Their  language  is  as  follows: 

“Not  only  may  a man  be  a citizen  of  the  United  States  without  being 
a citizen  of  a State,  but  an  important  element  is  necessary  to  convert  the 
former  into  the  latter.  He  must  reside  within  the  State  to  make  him  a 
citizen  of  it,  but  it  is  only  necessary  that  he  should  be  born  or  natural- 
ized in  the  United  States  to  be  a citizen  of  the  Union. 

“ It  is  quite  clear,  then,  that  there  is  a citizenship  of  the  United  States 
and  a citizenship  of  a State,  which  are  distinct  from  each  other,  and  which 
depend  upon  different  characteristics  or  circumstances  in  the  individual. 

“We  think  this  distinction  and  its  explicit  recognition  in  this  amend- 
ment of  great  weight  in  this  argument,  because  the  next  paragraph  of 


140 


-tliis  same  section,  which  is  the  one  mainly  relied  on  by  the  plaintiffs  in 
error,  speaks  only  of  privileges  and  immunities  of  citizens  of  the  United 
States,  and  does  not  speak  of  those  of  citizens  of  the  several  States.  The 
argument,  however,  in  favor  of  the  plaintiffs  rests  wholly  on  the  assump- 
tion that  the  citizenship  is  the  same,  and  the  privileges  and  immunities 
guaranteed  by  the  clause  are  the  same. 

“The  language  is,  ‘No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities'  of  citizens  of  the  United  States.’ 
It  is  a little  remarkable,  if  this  clause  was  intended  as  a protection  to 
the  citizen  of  a State  against  the  legislative  power  of  his  own  State,  that 
the  word  citizen  of  the  State  should  he  left  out  when  it  is  so  carefully 
used,  and  used  in  contradistinction  to  citizens  of  the  United  States,  in  the 
very  sentence  which  precedes  it.  It  is  too  clear  for  argument  that  the 
change  in  phraseology  was  adopted  understandingly  and  with  a purpose. 

“ Of  the  privileges  and  immunities  of  the  citizen  of  the  United  States, 
and  of  the  privileges  and  immunities  of  the.  citizen  of  the  State,  and 
what  they  respectively  are  we  will  presently  consider ; but  we  wish  to 
state  here  that  it  is  only  the  former  which  are  placed  by  this  clause 
under  the  protection  of  the  federal  Constitution,  and  that  the  latter, 
whatever  they  may  be,  are  not  intended  to  have  any  additional  protec- 
tion by  this  paragraph  of  the  amendment. 

“ If,  then,  there  is  a difference  between  the  privileges  and  immunities 
belonging  to  a citizen  of  the  United  States  as  such,  the  latter  must  rest 
for  their  security  and  protection  whjere  they  have  heretofore  rested ; for 
they  are  not  embraced  by  this  paragraph  of  the  ameudment.” 

The  doctrine  advanced  in  this  passage  is  the  special 
feature  of  the  opinion  and  has  been  the  occasion  of  dis- 
cussion and  disagreement  among  judges  and  members  of 
the  profession  throughout  the  countiy. 

The  majority  then  consider  the  meaning  attached  to  the 
terms  “privileges  and  immunities  ” contained  in  the  amend- 
ment and  adopt  substantially  as  correct  the  view  expressed 
by  Judge;  'Washington  in  Corfield  vs.  Coryell,  that  they 
embrace  those  rights  of  citizens  which  are  fundamental  in 
their  nature,  such  as  belong  to  citizens  of  all  free  govern- 
ments', and  hold  that  their  protection  rests  with  the  States 
and  not  with  the  United  States.  Their  language  is  as 
follows : 

“ It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  by  cita- 
tions of  authority,  that  up  to  the  adoption  of  the  recent  amendments  no 
claim  or  pretence  was  set  up  that  those  rights  depended  on  the  federal  gov- 
ernment for  their  existence  or  protection,  beyond  the  very  few  express 


141 


limitations  which  the  federal  Constitution  imposed  upon  the  States — 
such,  for  instance,  as  the  prohibition  against  ex  post  facto  laws,  bills  of  at- 
tainder. and  laws  impairing  the  obligation  of  contracts.  But  with  the 
exception  of  these  and  a few  other  restrictions,  the  entire  domain  of  the 
privileges  and  immunities  of  citizens  of  the  States,  as  above  defined,  lay 
within  the  constitutional  and  legislative  power  of  the  States,  and  with- 
out that  of  the  federal  government.  "Was  it  the  purpose  of  the  four- 
teenth amendment,  by  the  simple  declaration  that  no  State  should  make 
or  enforce  any  law  which  shall  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States,  to  transfer  the  security  and  protection  of  all 
the  civil  rights  which  we  have  mentioned,  from  the  States  to  the  federal 
government?  And  where  it  is  declared  that  Congress  shall  have  the 
power  to  enforce  that  article,  was  it  intended  to  bring  within  the  power 
of  Congress  the  entire  domain  of  civil  rights  heretofore  belonging  exclu- 
sively to  the  States  ? 

“All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs  in 
error  be  sound,  for  not  only  are  these  rights  subject  to  the  control  of  Con- 
gress, w henever  in  its  discretion  any  of  them  are  supposed  to  be  abridged 
by  State  legislation,  but  that  body  may  also  pass  laws  in  advance,  limit- 
ing and  restricting  the  exercise  of  legislative  power  by  the  States,  in  their 
most  ordinary  and  most  useful  functions,  as  in  its  judgment  it  may  think 
proper  on  all  such  subjects.  And  still  further,  such  a construction  fol- 
lowed by  the  reversal  of  the  judgments  of  the  Supreme  Court  of  Louisiana 
in  these  cases,  would  constitute  this  court  a perpetual  censor  upon  all 
legislation  of  the  States,  on  the  civil  rights  of  their  own  citizens,  with 
authority  to  nullify  such  as  it  did  not  approve  as  consistent  with  those 
rights  as  they  existed  at  the  time  of  the  adoption  of  this  amendment.” 

The  passage  here  given  is  generally  cited  as  showing 
the  evil  consequences  of  any  other  construction  than  the 
one  adopted.  The  majority  then  refer  to  such  privileges 
and  immunities  of  citizens  of  the  United  States  as  they 
suppose  are  intended,  when  the  States  are  inhibited  from 
making  or  enforcing  any  law  abridging  them.  These  are 
the  right  of  the  citizen  to  come  to  the  seat  of  government, 
to  assert  any  claim  he  may  have  upon  that  government, 
to  transact  any  business  lie  may  have  with  it,  to  seek  its 
protection,  to  share  its  oliices,  to  engage  in  administering 
its  functions,  to  have  free  access  to  its  seaports,  to  demand 
the  care  and  protection  of  that  government  over  his  life, 
liberty,  and  property  on  the  high  seas,  or  within  the  juris- 
diction of  a foreign  government;  the  right  to  peaceably 
assemble  and  petition  for  redress  of  grievances;  the  right 


142 


to  use  the  navigable  waters  of  the  United  States,  and  other 
similar  rights. 

To  these  positions  of  the  majoirty  of  the  court  several 
objections  naturally  arise. 

In  the  first  place,  if  the  inhibition  upon  the  States  does 
not  refer  to  the  fundamental  rights  of  citizens,  such  as  be- 
long to  the  citizens  of  all  free  governments,  such  as  are 
expressed  in  the  Declaration  of  Independence  as  the  in- 
alienable rights  of  men,  it  is  difficult  to  see  what  was  ac- 
complished by  its  insertion  in  the  amendment.  The  priv- 
ileges and  immunities  which  citizens  previously  enjoyed 
under  the  Constitution  and  laws  of  the  United  States,  no 
State  could  lawfully  interfere  with.  Any  attempted  in- 
terference with  them  could  have  been  successfully  resisted 
through  the  courts.  The  parties  who  drafted  and  advo- 
cated the  fourteenth  amendment  thought  that  they  would 
obtain  thereby  additional  security  for  the  rights  of  a citi- 
zen of  the  United  States,  not  that  they  were  merely  con- 
tending for  words  which  could  have  no  efficacy  beyond 
provisions  already  in  force. 

In  the  second  place,  the  construction  asserted  entirely 
ignores  the  avowed  purpose  of  the  framers  of  the  amend- 
ment, as  stated  in  the  discussion  of  the  measure  in  both 
Houses  of  Congress.  There  was  an  entire  concurrence  of 
views  on  the  part  of  all  persons — Democrats  and  Repub- 
licans, Senators  and  Representatives — that  the  object  of 
the  amendment  was  to  obviate  the  objections  which  had 
been  urged  to  the  validity  of  the  civil  rights  act,  or  rather 
to  legislation  of  a similar  character.  That  act  had  stated 
in  express  terms  that  citizens  of  the  United  States  had  the 
right  -'‘to  make  and  enforce  contracts,  to  sue,  be  parties 
and  give  evidence,  to  inherit,  purchase,  lease,  sell,  hold, 
and  convey  real  and  personal  property,  and  to  full  and 
equal  benefit  of  all  the  laws  and  proceedings  for  the  secur- 
ity of  person  and  property.”  These  were  rights  which, 
according  to  the  interpretation  of  the  majority,  are  now 
dependent  for  their  protection  upon  the  States  alone. 


143 


Though  the  debates  in  Congress  cannot  be  used  to  qualify 
the  meaning  of  language,  which  is  not  susceptible  of  mis- 
construction, they  can  be  resorted  to  in  order  to  show  the 
general  purpose  of  the  framers  of  legislation,  and  it  is  cer- 
tainly a matter  of  no  slight  significance  that  the  purpose 
of  the  amendment,  as  thus  shown,  is  consistent  with  the 
obvious  meaning  of  its  language.  “All  persons  horn  or 
naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.”  The  citizenship  of  the  United 
States  is  the  general  and  primary  citizenship  which  accom- 
panies the  individual  everywhere.  The  State  citizenship 
is  local  and  movable  at  the  option  of  the  party  by  a mere 
change  of  his  residence.  The  command  upon  the  States 
is  not  to  abridge  the  privileges  and  immunities  of  the  cit- 
izen of  the  United  States,  and  thus  all  the  privileges  and 
immunities  of  the  citizen,  be  he  of  the  United  States  or 
he  he  of  the  State,  are  secured. 

In  the  third  place,  the  alleged  evil  consequences  of  the 
opposite  construction  are  purely  imaginary.  The  inhibi- 
tion of  the  amendment  is  upon  the  States,  and  if  only  ap- 
propriate legislation  be  adopted  for  its  enforcement,  no 
such  interference  with  their  legislation,  no  such  censorship 
over  it  as  indicated  in  the  opinion,  can  exist.  Legislation 
to  annul  the  act  of  a State  can  only  he  appropriate  so  far 
as  it  authorizes  application  to  the  courts  to  meet  the  exi- 
gency, and  by  their  action  the  act  which  is  forbidden  will 
be  declared  null  or  its  enforcement  restrained. 

Every  inhibition  in  the  amendment  every  patriot  ought 
to  desire  to  see  enforced.  Can  any  one  object  to  the  clause 
forbidding  a State  to  abridge  the  privileges  and  immuni- 
ties of  citizens  of  the  United  States  ; that  is,  to  take  away 
or  impair  any  of  their  fundamental  rights  ? Can  any  one 
find  fault  with  the  clause  which  declares  that  no  State  shall 
deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law  ? Can  any  one  object  to  the  provision 
which  declares  that  no  State  shall  den}T  to  any  person 


144 


within  its  jurisdiction  the  equal  protection  of  its  laws  ? 
Surely  not.  The  amendment  does  not  limit  the  subjects 
upon  which  the  States  can  legislate  ; it  only  inhibits  dis- 
criminating and  partial  enactments  favoring  some  to  the 
impairment  of  the  rights  of  others;  it  simply  requires  that 
every  one  shall  be  allowed  to  pursue  his  happiness  unre- 
strained except  by  just,  equal,  and  impartial  laws. 

The  amendment  lias  been  the  subject  of  complaint  from 
the  manner  in  which  legislation  has  attempted  to  enforce 
its  prohibitions,  not  from  the  prohibitions  themselves. 
That  manner  has  in  most  cases  been  clearly  wrong.  The 
only  appropriate  manner  is  that  which  has  been  applied 
with  reference  to  other  prohibitions  previously  existing  in 
the  Constitution,  such  as  the  prohibition  against  a State 
passing  a law  impairing  the  obligation  of  contracts,  or  a 
bill  of  attainder,  or  an  ex  post  ficto  law.  ISTo  machinery  is 
necessary  to  annul  any  legislation  in  disregard  of  these 
prohibitions,  except  such  as  may  facilitate  proceedings  for 
that  purpose  in  the  courts;  and  no  other  legislation  can  be 
appropriate  as  against  the  action  of  a State. 

The  answers  of  the  dissenting  judges  to  the  opinion  of 
the  majority  were  full,  and  are  generally  regarded  by  the 
profession  as  satisfactory.  An  extended  citation  is  made 
from  the  one  delivered  by  Judge  Field.  He  considered 
the  law  of  Louisiana  in  the  light  of  the  thirteenth  and 
fourteenth  amendments,  although  he  only  rested  his  judg- 
ment on  the  fourteenth. 

“That,  amendment  [the  thirteenth]  prohibits  slavery  and  involuntary 
servitude,  except  as  a punishment  for  crime,  but  I have  not  supposed  it 
was  susceptible  of  a construction  which  would  cover  the  enactment  in 
question.  1 have  been  so  accustomed  to  regard  it  as  intended  to  meet 
that  form  of  slavery  which  had  previously  prevailed  in  this  country,  and 
to  which  the  recent  civil  war  owed  its  existence,  that  I was  not  prepared, 
nor  am  I yet,  to  give  it  the  extent  and  force  ascribed  bjr  counsel.  Still  it 
is  evident  that  the  language  of  the  amendment  is  not  used  in  a restrictive 
sense.  It  is  not.  confined  to  African  slavery  alone.  It  is  general  and  uni- 
versal in  its  application.  Slavery  of  white  men  as  well  as  of  black  men 
is  prohibited,  and  not  merely  slavery  in  the  strict  sense  of  the  term,  but 
involuntary  servitude  in  every  form. 


145 


" The  words  'involuntary  servitude’  have  not  been  the  subject  of  any 
judicial  or  legislative  exposition,  that  I am  aware  of,  in  this  country,  ex- 
cept that  which  is  found  in  the  civil  rights  act,  which  will  be  hereafter 
noticed.  It  is,  however,  clear  that  they  include  something  more  than 
slavery  in  the  strict  sense  of  the  term  ; they  include  also  serfage,  vas- 
salage, villanage,  peonage,  and  all  other  forms  of  compulsory  service  for 
the  mere  benefit  or  pleasure  of  others.  Nor  is  this  the  full  import  of  the 
terms.  The  abolition  of  slavery  and  involuntary  servitude  was  intended 
to  make  every  one  born  in  this  country  a freeman,  and  as  such,  to  give 
to  him  the  right  to  pursue  the  ordinary  avocations  of  life  without  other 
restraint  than  such  as  affects  all  others,  and  to  enjoy  equally  with  them 
the  fruits  of  his  labor.  A prohibition  to  him  to  pursue  certain  callings, 
open  to  others  of  the  same  age,  condition,  and  sex,  or  to  reside  in  places 
where  others  are  permitted  to  live,  would  so  far  deprive  him  of  the  rights 
of  a freeman,  and  would  place  him,  as  respects  others,  in  a condition  of 
servitude.  A person  allowed  to  pursue  only  one  trade  or  calling,  and 
only  in  one  locality  of  the  country,  would  not  be,  in  the  strict  sense  of 
the  term,  in  a condition  of  slavery,  but  probably  none  would  deny  that 
he  would  be  in  a condition  of  servitude.  He  certainly  would  not  possess 
the  liberties  nor  enjoy  the  privileges  of  a freeman.  The  compulsion 
which  would  force  him  to  labor  even  for  his  own  benefit  only  in  one 
direction,  or  iu  one  place,  would  be  almost  as  oppressive,  and  nearly  as 
great  an  invasion  of  his  liberty  as  the  compulsion  which  would  force  him 
to  labor  for  the  benefit  or  pleasure  of  another,  and  would  equally  con- 
stitute an  element  of  servitude.  The  counsel  of  the  plaintiffs  in  error, 
therefore,  contend  that  ‘ wherever  a law  of  a State  or  a law  of  the  United 
States  makes  a discrimination  between  classes  of  persons,  which  deprives 
the  one  class  of  their  freedom  or  their  property,  or  which  makes  a caste 
of  them,  to  subserve  the  power,  pride,  avarice,  vanity,  or  vengeance  of 
others,’  there  involuntary  servitude  exists  within  the  meaning  of  the 
thirteenth  amendment. 

“ It  is  not  necessary,  in  my  judgment,  for  the  disposition  of  the  present 
case  in  favor  of  the  plaintiffs  in  error,  to  accept  as  entirely  correct  this 
conclusion  of  counsel.  It,  however,  finds  support  in  the  act  of  Congress 
known  as  the  civil  rights  act,  which  was  framed  and  adopted  upon  a con- 
struction of  the  thirteenth  amendment,  giving  to  its  language  a similar 
breadth.  That  amendment  was  ratified  on  the  eighteenth  of  December, 
1865,*  and  in  April  of  the  following  year  the  civil  rights  act  was  passed.f 
Its  first  section  declares  that  all  persons  born  in  the  United  States,  and 
not  subject  to  any  foreign  power,  excluding  Indians  not  taxed,  are  ‘citi- 
zens of  the  United  States,’  and  that  ‘such  citizens,  of  every  race  and  color, 
without  regard  to  any  previous  condition  of  slavery,  or  involuntary  servi- 
tude, except  as  a punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  have  the  same  right  iu  every  State  anti  terri- 


* 13  Stat.  at  Large,  774, 


10 


f 14  lb.,  27. 


146. 


tory  in  the  United  States,  to  make  and  enforce  contracts,  to  sue,'  be  par- 
ties, and  give  evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and  convey 
real  and  personal  property,  and  to  full  and  equal  benefit  of  all  laws  and 
proceedings  for  the  security  of  person  and  property,  as  enjoyed  by  white 
citizens.’ 

“ This  legislation  was  supported  upon  the  theory  that  citizens  of  the 
United.  States  as  such  were  entitled  to  the  rights  and  privileges  enumer- 
ated, and  that  to  deny  to  any  such  citizen  equality  in  these  rights  and 
privileges  with  others,  was,  to  the  extent  of  the  denial,  subjecting  him  to 
an  involuntary?  servitude.  Senator  Trumbull,  who  drew  the  act  and  who 
was  its  earnest  advocate  in  the  Senate,  stated,  on  opening  the  discussion 
upon  it  in  that  body,  that  the  measure  was  intended  to  give  effect  to  the 
declaration  of  the  amendment,  and  to  secure  to  all  persons  in  the  United 
States  practical  freedom.  After  referring  to  several  statutes  passed  in 
some  of  the  Southern  States,  discriminating  between  the  freedinen  and 
white  citizens,  and  after  citing  the  definition  of  civil  liberty  given  by 
Blackstone,  the  Senator  said:  '1  take  it  that  any  statute  which  is  not 
equal  to  all,  and  which  deprives  any  citizen  of  civil  rights,  which  are 
secured  to  other  citizens,  is  an  unjust  encroachment  upon  his  liberty; 
and  it  is  in  fact  a badge  of  servitude  which  by  the  Constitution  is  pro- 
hibited.’ 4:" 

“ By  the  act  of  Louisiana,  within  the  three  parishes  named,  a territory 
exceeding  one  thousand  one  hundred  square  miles,  and  embracing  over 
two  hundred  thousand  people,  every  man  w’lio  pursues  the  business  of 
preparing  animal  food  for  market  must  take  his  animals  to  the  build- 
ings of  the  favored  company,  and  must  perform  his  work  in  them,  and 
for  the  use  of  the  buildings  must  pay  a prescribed  tribute  to  the  company, 
and  leave  with  it  a valuable  portion  of  each  animal  slaughtered.  Every 
man  in  these  parishes  who  has  a horse  or  other  animal  for  sale,  must  carry 
him  to  the  yards  and  stables  of  this  company,  and  for  their  use  pay  a 
like  tribute.  He  is  not  allowed  to  do  his  work  in  his  own  buildings,  or 
to  take  his  animals  to  his  own  stables  or  keep  them  in  his  own  yards, 
even  though  they  should  be  erected  in  the  same  district  as  the  buildings, 
stables,  and  yards  of  the  company,  and  that  district  embraces  over  eleven 
hundred  square  miles.  The  prohibition  imposed  by  this  act  upon  butch- 
ers and  dealers  in  cattle  in  these  parishes,  and  the  special  privileges  con- 
ferred upon  the  favored  corporation,  are  similar  in  principle  and  as  odious 
in  character  as  the  restrictions  imposed  in  the  last  century  upon  the  peas- 
antry in  some  parts  of  France,  where,  as  says  a French  writer,  the  peas- 
ant was  prohibited  ‘to  hunt  on  his  own  lands,  to  fish  in  his  own  waters, 
to  grind  at  his  own  mill,  to  cook  at  his  own  oven,  to  dry  his  clothes  on 
his  own  machines,  to  whet  his  instruments  at  his  own  grindstone,  to 
make  his  own  wine,  his  oil,  and  his  cider  at  his  own  press,  ....  or 
to  sell  his  commodities  at  the  public  market.’  The  exclusive  right  to  all 


* Cong.  Globe,  1st  Sess.,  39th  Cong.,  Part  I.,  p.  474. 


147 


these  privileges  was  vested  in  the  lords  of  the  vicinage.  1 The  history  of 
the  most  execrable  tyranny  of  ancient  times,’  says  the  same  writer.  ‘ offers 
nothing  like  this.  This  category  of  oppressions  cannot  be  applied  to  a 
free  man.  or  to  the  peasant,  except  in  violation  of  his  rights.’ 

“ Bnt  if  the  exclusive  privileges  conferred  upon  the  Louisiana  corpor- 
ation can  he  sustained,  it  is  not  perceived  why  exclusive  privileges  for 
the  construction  and  keeping  of  ovens,  machines,  grindstones,  wine- 
presses. and  for  all  the  numerous  trades  and  pursuits  for  the  prosecution 
of  which  buildings  are  required,  may  not  be  equally  bestowed  on  other 
corporations  or  private  individuals,  and  for  periods  of  indefinite  duration. 

“ It  is  not  necessary,  however,  as  I have  said,  to  rest  my  objections  to 
the  act  in  question  upon  the  terms  and  meaning  of  the  thirteenth  amend- 
ment. The  provisions  of  the  fourteenth  amendment,  which  is  properly 
a supplement  to  the  thirteenth,  cover,  in  my  judgment,  the  case  before 
us,  and  inhibit  any  legislation  which  confers  special  and  exclusive  priv- 
ileges like  these  under  consideration.  The  amendment  was  adopted  to 
obviate  objections  which  had  been  raised  and  pressed  with  great  force  to 
the  validity  of  the  civil  rights  act,  and  to  place  the  common  rights  of 
American  citizens  under  the  protection  of  the  national  government.  It 
first  declares  that  ‘ all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.’  It  then  declares  that  1 no  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States,  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.’ 

“ The  first  clause  of  this  amendment  determines  who  are  citizens  of  the 
United  States,  and  how  their  citizenship  is  created.  Before  its  enactment 
there  was  much  diversity  of  opinion  among  jurists  and  statesmen  whether 
there  was  any  such  citizenship  independent  of  that  of  the  State,  and,  if 
any  existed,  as  to  the  manner  in  which  it  originated.  With  a great  num- 
ber the  opinion  prevailed  that  there  was  no  such  citizenship  independent 
of  the  citizenship  of  the  State.  Such  was  the  opinion  of  Mr.  Calhoun  and 
the  class  represented  by  him.  In  his  celebrated  speech  in  the  Seuate  upon 
the  force  bill,  in  1833,  referring  to  the  reliance  expressed  by  a Senator 
upon  the  fact  that  we  are  citizens  of  the  United  States,  he  said  : ‘If  by 
citizen  of  the  United  States  he  means  a citizen  at  large,  one  whose  citi- 
zenship extends  to  the  entire  geographical  limits  of  the  country  without 
having  a local  citizenship  in  some  State  or  territory,  a sort  of  citizen  of 
the  world,  all  I have  to  say  is  that  such  a citizen  would  be  a perfect  non- 
descript : that  not  a single  individual  of  this  description  can  be  found  in 
the  entire  mass  of  our  population.  Notwithstanding  all  the  pomp  and 
display  of  eloquence  on  the  occasion,  every  citizen  is  a citizen  of  some 
State  or  territory,  and  as  such,  under  an  express  provision  of  the  Consti- 
tution, is  entitled  to  all  the  privileges  and  immunities  of  citizens  of  the 


148 


several  States;  and  it  is  in  this  and  no  other  sense  that  we  are  citizens  of 
the  United  States.’* 

“In  the  Dred  Scott  case  this  subjectof  citizenship  of  the  United  States 
was  fully  and  elaborately  discussed.  The  exposition  in  the  opinion  of 
Mr.  Justice  Curtis  has  been  generally  accepted  by  the  profession  of  the 
country  as  the  one  containing  the  soundest  views  of  constitutional  law. 
And  he  held  that,  under  the  Constitution,  citizenship  of  the  United  States 
in  reference  to  natives  was  dependent  upon  citizenship  in  the  several 
States,  under  their  constitutions  and  laws. 

“The  Chief  Justice  in  that  case,  and  the  majority  of  the  court  with 
him,  held  that  the  words  ‘people  of  the  United  States  ’ and  ‘citizens’ 
were  synonymous  terms ; that  the  people  of  the  respective  States  were 
the  parties  to  the  Constitution ; that  these  people  consisted  of  the  free 
inhabitants  of  those  States;  that  they  had  provided  in  their  Consti- 
tution for  the  adoption  of  an  uniform  rule  of  naturalization  ; that  they 
and  their  descendants  and  persons  naturalized  were  the  only  persons  who 
could  be  citizens  of  the  United  States,  and  that  it  was  not  in  the  power 
of  any  State  to  invest  any  other  person  with  citizenship  so  that  he  could 
enjoy  the  privileges  of  a citizen  under  the  Constitution,  and  that,  there- 
fore, the  descendants  of  persons  brought  to  this  country  and  sold  as  slaves 
were  not,  and  could  not  be,  citizens  within  the  meaning  of  the  Consti- 
tution. 

“ The  first  clause  of  the  fourteenth  amendment  changes  this  whole 
subject,  and  removes  it  from  the  region  of  discussion  and  doubt.  It  rec- 
ognizes in  express  terms,  if  it  does  not  create,  citizens  of  the  United 
States,  and  it  makes  their  citizenship  dependent  upon  the  place  of  their 
birth,  or  the  fact  of  their  adoption,  and  not  upon  the  constitution  or 
laws  of  any  State  or  the  condition  of  their  ancestry.  A citizen  of  a State 
is  now  only  a citizen  of  the  United  States  residing  in  that  State.  The 
fundamental  rights,  privileges,  and  immunities  which  belong  to  him  as 
a free  man  and  a free  citizen,  now  belong  to  him  as  a citizen  of  the  United 
States,  and  are  not  dependent  upon  his  citizenship  of  any  State.  The 
exercise  of  these  rights  and  privileges,  and  the  degree  of  enjoyment  re- 
ceived from  such  exercise,  are  always  more  or  less  affected  by  the  condi- 
tion and  the  local  institutions  of  the  State,  or  city,  or  town  where  he  re- 
sides. They  are  thus  affected  in  a State  by  the  wisdom  of  its  law's,  the 
ability  of  its  officers,  the  efficiency  of  its  magistrates,  the  education  and 
morals  of  its  people,  and  by  many  other  considerations.  This  is  a result 
which  follows  from  the  constitution  of  society,  and  can  never  be  avoided, 
but  iu  no  other  way  can  they  be  affected  by  the  action  of  the  State,  or 
by  the  residence  of  the  citizen  therein.  They  do  not  derive  their  exist- 
ence from  its  legislation,  and  cannot  be  destroyed  by  its  power. 

“ The  amendment  does  not  attempt  to  confer  any  new  privileges  or 
immunities  upon  citizens,  or  to  enumerate  or  define  those  already  exist- 


Calhoun’s  Works,  vol.  2,  p.  242. 


149 


ing.  It  assumes  that  there  are  such  privileges  and  immunities  which  be- 
long of  right  to  citizens  as  such,  and  ordains  that  they  shall  not  be  abridged 
by  state  legislation.  If  this  inhibition  has  no  reference  to  privileges  and 
immunities  of  this  character,  but  only  refers,  as  held  by  the  majority  of 
the  court  in  their  opinion,  to  such  privileges  and  immunities  as  were  be- 
fore its  adoption  specially  designated  in  the  Constitution  or  necessarily 
implied  as  belonging  to  citizens  of  the  United  States,  it  was  a vain  and 
idle  enactment,  which  accomplished  nothing,  and  most  unnecessarily  ex- 
cited Congress-and  the  people  on  its  passage.  With  privileges  and  im- 
munities thus  designated  or  implied,  no  State  could  ever  have  interfered 
by  its  laws,  and  no  new  constitutional  provision  was  required  to  inhibit 
such  interference.  The  supremacy  of  the  Constitution  and  the  laws  of 
the  United  States  always  controlled  any  State  legislation  of  that  char- 
acter. But  if  the  amendment  refers  to  the  natural  and  inalienable  rights 
which  belong  to  all  citizens,  the  inhibition  has  a profound  significance 
and  consequence. 

“ What,  then,  are  the  privileges  and  immunities  which  are  secured 
against  abridgment  by  State  legislation  ? 

“ In  the  first  section  of  the  civil  rights  act  Congress  has  given  its  inter- 
pretation to  these  terms,  or,  at  least,  has  stated  some  of  the  rights  which, 
in  its  judgment,  these  terms  include  ; it  has  there  declared  that  they  in- 
clude the  right  1 to  make  aud  enforce  contracts,  to  sue,  be  parties  and 
give  evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and  convey  real  and 
personal  property,  and  to  full  and  equal  benefit  of  all  laws  and  proceed- 
ings for  the  security  of  person  and  property.’  That  act,  it  is  true,  was 
passed  before  the  fourteenth  amendment,  but  the  amendment  was  adopted, 
as  I have  already  said,  to  obviate  objections  to  the  act,  or,  speaking  more 
accurately,  I should  say,  to  obviate  objections  to  legislation  of  a similar 
character,  extending  the  protection  of  the  national  government  over  the 
common  rights  of  all  citizens  of  the  United  States.  Accordingly,  after 
its  ratification,  Congress  re-enacted  tl\e  act,  under  the  belief  that  what- 
ever doubts  may  have  previously  existed  of  its  validity,  they  were  re- 
moved by  the  amendment,* 

“ The  terms,  privileges  and  immunities  are  not  new  in  the  amendment ; 
they  were  in  the  Constitution  before  the  amendment  was  adopted.  They 
are  found  iu  the  second  section  of  the  fourth  article,  which  declares  that 
‘the  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immu- 
nities of  citizens  in  the  several  States,’  and  they  have  been  the  subject  of 
frequent  consideration  in  judicial  decisions.  In  Corfield  vs.  Coryell, f 
Mr.  Justice  Washington  said  he  had  ‘ no  hesitation  in  confining  these  ex- 
pressions to  those  privileges  and  immunities  which  were,  in  their  nature, 
fundamental : which  belong  of  right  to  citizens  of  all  free  governments, 
and  which  have  at  all  times  been  enjoyed  by  the  citizens  of  the  several 


* May  31st,  1870 ; 16  Stat.  at  Large,  144. 
f 4 Washington,  Cir.  Ct.,  380. 


150 


States  which  compose  the  Union,  from  the  time  of  their  becoming  free, 
independent,  and  sovereign  and,  in  considering  what  these  fundamen- 
tal privileges  were,  he  said  that  perhaps  it  would  be  more  tedious  than 
difficult  to  enumerate  them,  but  that  they  might  be  1 all  comprehended 
under  the  following  general  heads  : protection  by  the  government ; the 
enjoyment  of  life  and  liberty,  with  the  right  to  acquire  and  possess  prop- 
erty of  every  kind,  and  to  pursue  and  obtain  happiness  and  safety,  sub- 
ject, nevertheless,  to  such  restraints  as  the  government  may  justly  pre- 
scribe for  the  general  good  of  the  whole.’  This  appears  to  me  to  be  a 
Sound  construction  of  the  clause  in  question.  The  privileges  and  immu- 
nities designated  are  those  which  of  right  belong  to  the  citizens  of  all  free 
governments.  Clearly  among  these  must  be  placed  the  right  to  pursue  a 
lawful  employment  in  a lawful  manner,  without  other  restraint  than 
such  as  equally  affects  all  persons.  In  the  discussions  in  Congress  upon 
the  passage  of  the  civil  rights  act  repeated  reference  was  made  to  this 
language  of  Mr.  Justice  Washington.  It  was  cited  by  Senator  Trumbull 
with  the  observation  that  it  enumerated  the  very  rights  belonging  to  a 
citizen  of  the  United  States  set  forth  in  the  first  section  of  the  act,  and 
with  the  statement  that  all  persons  born  in  the  United  States,  being- 
declared  by  the  act  citizens  of  the  United  States,  would  thenceforth  be 
entitled  to  the  rights  of  citizens,  and  that  these  were  the  great  funda- 
mental rights  set  forth  in  the  act;  and  that  they  were  set  forth  ‘as 
appertaining  to  every  freeman.’ 

“The  privileges  and  immunities  designated  in  the  second  section  of 
the  fourth  article  of  the  Constitution  are,  then,  according  to  the  decision 
cited,  those  which  of  right  belong  to  the  citizens  of  all  free  governments, 
and  they  can  be  enjoyed  under  that  clause  by  the  citizens  of  each  State  in 
the  several  States  upon  the  same  terms  and  conditions  as  they  are  enjoyed 
by  the  citizens  of  the  latter  States.  No  discrimination  can  be  made  by 
one  State  against  the  citizens  of  other  States  in  their  enjoyment,  nor  can 
any  greater  imposition  be  levied  than  such  as  is  laid  upon  its  own  citi- 
zens. It  is  a clause  which  insures  equality  in  the  enjoyment  of  these 
rights  between  citizens  of  the  several  States  whilst  in  the  same  State. 

“ Nor  is  there  anything  in  the  opinion  in  the  case  of  Paul  vs.  Virginia * 
which  at  all  militates  against  these  views,  as  is  supposed  by  the  major- 
ity of  the  court. 

“ The  whole  purport  of  the  decision  [in  that  case]  was,  that  citizens  of 
one  State  do  not  carry  with  them  into  other  States  any  special  privileges 
or  immunities  conferred  by  the  laws  of  their  own  States,  of  a corporate 
or  other  character.  That  decision  has  no  pertinency  to  the  questions  in- 
volved in  this  case.  The  common  privileges  and  immunities  which  of 
right  belong  to  all  citizens,  stand  on  a very  different  footing.  These  the 
citizens  of  each  State  do  carry  with  them  into  other  States  and  are  secured 
by  the  clause  in  question,  in  their  enjoyment  upon  terms  of  equality  with 


.*  8 Wallace,  168. 


151 


citizens  of  the  latter  States.  This  equality  in  one  particular  was  en- 
forced by  this  court  in  the  recent  case  of  Ward  vs.  The  State  of  Mary- 
land, reported  in  the  12tli  of  Wallace.  A statute  of  that  State  required 
the  payment  of  a larger  sum  from  a non-resident  trader  for  a license  to 
enable  him  to  sell  his  merchandise  in  the  State,  than  it  did  of  a resident 
trader,  and  the  court  held  that  the  statute  in  thus  discriminating  against 
the  non-resident  trader  contravened  the  clause  securing  to  the  citizens  of 
each  State  the  privileges  and  immunities  of  citizens  of  the  several  States. 
The  privilege  of  disposing  of  his  property,  which  was  an  essential  incident 
to  his  ownership,  possessed  by  the  non-resident,  was  subjected  by  the 
statute  of  Maryland  to  a greater  burden  than  was  imposed  upon  a like 
privilege  of  her  own  citizens.  The  privileges  of  the  non-resident  were  in 
this  particular  abridged  by  that  legislation. 

“ What  the  clause  in  question  did  for  the  protection  of  the  citizens  of 
one  State  against  hostile  and  discriminating  legislation  of  other  States, 
the  fourteenth  amendment  does  for  the  protection  of  every  citizen  of  the 
United  States  against  hostile  and  discriminating  legislation  against  him 
in  favor  of  others,  whether  they  reside  in  the  same  or  in  different  States. 
If,  under  the  fourth  article  of  the  Constitution,  equality  of  privileges 
and  immunities  is  secured  between  citizens  of  different  States,  under  the 
fourteenth  amendment  the  same  equality  is  secured  between  citizens  of 
the  United  States. 

‘"It  will  not  be  pretended  that  under  the  fourth  article  of  the  Consti- 
tution any  State  could  create  a monopoly  in  any  known  trade  or  manu- 
facture in  favor  of  her  own  citizens,  or  any  portion  of  them,  which  would 
exclude  an  equal  participation  in  the  trade  or  manufacture  monopolized 
by  citizens  of  other  States.  She  could  not  confer,  for  example,  upon  any 
of  her  citizens  the  sole  right  to  manufacture  shoes  or  boots  or  silk,  or  the 
sole  right  to  sell  those  articles  in  the  State,  so  as  to  exclude  non-resident 
citizens  from  engaging  in  a similar  manufacture  or  sale.  The  non-resi- 
dent citizens  could  claim  equality  of  privilege  under  the  provisions  of 
the  fourth  article  with  the  citizens  of  the  State  exercising  the  monopoly 
as  well  as  with  others,  and  thus,  as  respects  them,  the  monopoly  would 
cease,  if  this  were  not  so,  it  would  be  in  the  power  of  the  State  to  ex- 
clude at  any  time  the  citizens  of  other  States  from  participation  in  par- 
ticular branches  of  commerce  or  trade,  and  extend  the  exclusion  from 
time  to  time  so  as  effectually  to  prevent  any  traffic  with  them. 

“ Now,  what  the  clause  in  question  does  for  the  protection  of  citizens 
of  one  State  against  the  creation  of  monopolies  in  favor  of  citizens  of 
other  States,  the  fourteenth  amendment  does  for  the  protection  of  every 
citizen  of  the  United  States  against  the  creation  of  any  monopoly  what- 
ever. The  privileges  and  immunities  of  citizens  of  the  United  States, 
of  every  one  of  them,  is  secured  against  abridgment  in  any  form  by  any 
State.  The  fourteenth  amendment  places  them  under  the  guardianship 
of  the  national  authority.  All  monopolies  in  any  known  .trade  or  manu- 
facture are  an  invasion  of  these  privileges,  for  they  encroach  upon  the 


152 


liberty  of  citizens  to  acquire  property  and  pursue  happiness,  and  were 
held  void  at  common  law  in  the  great  case  of  Monopolies,  decided  during 
the  reign  of  Queen  Elizabeth. 

“A  monopoly  is  defined  ‘ to  be  an  institution  or  allowance  from  the 
sovereign  power  of  the  State,  bv  grant,  commission,  or  otherwise,  to  any 
person  or  corporation,  for  the  sole  buying,  selling,  making,  working,  or 
using  of  anything  whereby  any  person  or  persons,  bodies  politic  or  cor- 
porate, are  sought  to  be  restrained  of  any  freedom  or  liberty  they  had  be- 
ibre,  or  hindered  in  their  lawful  trade.’  All  such  grants  relating  to  any 
known  trade  or  manufacture  have  been  held  by  all  the  judges  of  Eng- 
land, whenever  they  have  come  up  for  consideration,  to  be  void  at  com- 
mon law,  as  destroying  the  freedom  of  trade,  discouraging  labor  and  indus- 
try. restraining  persons  from  getting  an  honest  livelihood,  and  putting  it 
in  the  power  of  the  grantees  to  enhance  the  price  of  commodities.  The 
definition  embraces,  it  will  be  observed,  not  merely  the  sole  privilege  of 
buying  aud  selling  particular  articles,  or  of  engaging  in  their  manufac- 
ture, but  also  the  sole  privilege  of  using  anything  by  which  others  may 
be  restrained  of  the  freedom  or  liberty  they  previously  had  in  any  law- 
ful trade,  or  hindered  in  such  trade.  It  thus  covers  in  every  particular 
the  possession  and  use  of  suitable  yards,  stables,  and  buildings  for  keep- 
ing and  protecting  cattle  and  other  animals,  and  for  their  slaughter. 
Such  establishments  are  essential  to  the  free  and  successful  prosecution 
by  any  butcher  of  the  lawful  trade  of  preparing  animal  food  for  market. 
The  exclusive  privilege  of  supplying  such  yards,  buildings,  and  other 
conveniences  for  the  prosecution  of  this  business  in  a large  district  of 
country,  granted  by  the  act  of  Louisiana  to  seventeen  persons,  is  as  much 
a monopoly  as  though  it  had  granted  to  the  company  the  exclusive  priv- 
ilege of  buying  and  selling  the  animals  themselves.  It  equally  restrains 
the  butchers  in  the  freedom  and  liberty  they  previously  had  and  hinders 
them  in  their  lawful  trade. 

“The  reasons  given  for  the  judgment  in  the  case  of  Monopolies  apply 
with  equal  force  to  the  case  at  bar.  In  that  case  a patent  had  been 
granted  to  the  plaintiff  giving  him  the  sole  right  to  import  playing-cards, 
and  the  entire  traffic  in  them,  and  the  sole  right  to  make  such  cards 
within  the  realm.  The  defendant,  in  disregard  of  this  patent,  made  and 
sold  some  gross  of  such  cards  and  imported  others,  and  was  accordingly 
sued  for  infringing  upon  the  exclusive  privileges  of  the  plaintiff.  As  to 
a portion  of  the  cards  made  and  sold  within  the  realm,  he  pleaded  that 
he  was  a haberdasher  in  London  and  a free  citizen  of  that  city,  and  as 
such  had  a right  to  make  and  sell  them.  The  court  held  the  plea  good 
and  the  grant  void,  as  against  the  common  law  and  divers  acts  of  Parlia- 
ment. ‘All  trades,’  said  the  court,  ‘as  well  mechanical  as  others,  which 
prevent  idleness  (the  bane  of  the  commonwealth)  and  exercise  men  and 
youth  in  labor  for  the  maintenance  of  themselves  and  their  families,  and 
for  the  increase  of  their  substance,  to  serve  the  Queen  when  occasion 
shall  require,  are  profitable  for  the  commonwealth,  and  therefore  the 


153 


grant  to  the  plaintiff  to  have  the  sole  making  of  them  is  against  the  com- 
mon law  and  the  benefit  and  liberty  of  the  subject.1'*  The  case  of  Davenant 
and  Hindis  was  cited  in  support  of  this  position.  In  that  case  a com- 
pany of  merchant  tailors  in  London,  having  power  by  charter  to  make 
ordinances  for  the  better  rule  and  government  of  the  company,  so  that 
they  were  consonant  to  law  and  reason,  mode  an  ordinance  that  any 
brother  of  the  society  who  should  have  any  cloth  dressed  by  a cloth- 
worker.  not  being  a brother  of  the  society,  should  put  one-half  of  his 
cloth  to  some  brother  of  the  same  society  who  exercised  the  art  of  a cloth- 
worker.  upon  pain  of  forfeiting  ten  shillings,  ‘and  it  was  adjudged  that 
the  ordinance,  although  it  had  the  countenance  of  a charter,  was  against 
the  common  law,  because  it  was  against  the  liberty  of  the  subject ; for  every 
subject,  by  the  laic,  has  freedom  and  liberty  to  put  his  cloth  to  be  dressed  by 
what  cloth-worker  he  pleases,  and  cannot  be  restrained  to  certain  persons,  for 
that  in  effect  would  be  a monopoly,  and,  therefore,  such  ordinance,  by  color 
of  a charter  or  any  grant  by  charter  to  such  effect,  would  be  void.’ 

“Although  the  court,  in  its  opinion,  refers  to  the  increase  in  prices  and 
deterioration  in  quality  of  commodities  which  necessarily  result  from  the 
grant  of  monopolies,  the  main  ground  of  the  decision  was  their  interfer- 
ence with  the  liberty  of  the  subject  to  pursue  for  his  maintenance  and 
that  of  his  family  any  lawful  trade  or  employment.  This  liberty  is  as- 
sumed to  be  the  natural  right  of  every  Englishman. 

“ The  struggle  of  the  English  people  against  monopolies  forms  one  of  the 
most  interesting  and  instructive  chapters  in  their  history.  It  finally  ended 
in  the  passage  of  the  statute  of  21st  .Tames  I.,  by  which  it  was  declared 
‘that  all  monopolies  and  all  commissions,  grants,  licenses,  charters,  and 
letters-patent,  to  any  person  or  persons,  bodies  politic  or  corporate,  what- 
soever, of  or  for  the  sole  buying,  selling,  making,  working,  or  using  of 
anything  ’ within  the  realm  or  the  dominion  of  Wales,  were  altogether 
contrary  to  the  laws  of  the  realm  and  utterly  void,  with  the  exception  of 
patents  for  new  inventions  for  a limited  period,  and  for  printing,  then 
supposed  to  belong  to  the  prerogative  of  the  King,  and  for  the  prepara- 
tion and  manufacture  of  certain  articles  and  ordnance  intended  for  the 
prosecution  of  war. 

"The  common  law  of  England,  as  is  thus  seen,  condemned  all  monopolies 
in  any  known  trade  or  manufacture,  and  declared  void  all  grants  of  special 
privileges  whereby  others  could  be  deprived  of  any  liberty  which  they 
previously  had,  or  be  hindered  in  their  lawful  trade.  The  statute  of 
James  I.,  to  which  I have  referred,  only  embodied  the  law  as  it  had  been 
previously  declared  by  the  courts  of  England,  although  frequently  disre- 
garded by  the  sovereigns  of  that  country. 

“ The  common  law  of  England  is  the  basis  of  the  jurisprudence  of  the 
United  States.  It  was  brought  to  this  country  by  the  Colonists,  together 
with  the  English  statutes,  and  was  established  here  so  far  as  it  was  ap- 


* 1 Coke  Rept.,  part  XI.,  p.  86, 


154 


plicable  to  their  condition.  That  law  and  the  benefit  of  such  of  the 
English  statutes  as  existed  at  the  time  of  their  colonization,  and  which 
they  had  by  experience  found  to  be  applicable  to  their  circumstances, 
were  claimed  by  the  Congress  of  the  United  Colonies  in  1774  as  a part 
of  their  ‘ indubitable  rights  and  liberties.’*  Of  the  statutes,  the  benelit 
of  which  was  thus  claimed,  the  statute  of  James  I.  against  monopolies 
was  one  of  the  most  important.  And  when  the  colonies  separated  from 
the  mother  country,  no  privilege  was  more  fully  recognized  or  more  com- 
pletely incorporated  into  the  fundamental  law  of  the  country,  than  that 
every  free  subject  in  the  British  Empire  was  entitled  to  pursue  his  hap- 
piness by  following  any  of  the  known  established  trades  and  occupations 
of  the  country,  subject  only  to  such  restraints  as  equally  affected  all  others. 
The  immortal  document  which  proclaimed  the  independence  of  the  coun- 
try declared  as  self-evident  truths  that  the  Creator  had  endowed  all  men 
‘with  certain  inalienable  rights,  and  that  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness  ; and  that  to  secure  these  rights  governments  are 
instituted  among  men.’ 

“If  it  be  said  that  the  civil  law  and  not  the  common  law  is  the  basis  of 
the  jurisprudence  of  Louisiana,  I answer  that  the  decree  of  Louis  XVIth, 
in  1776,  abolished  all  monopolies  of  trades  and  all  special  privileges  of 
corporations,  guilds,  and  trading  companies,  and  authorized  every  person 
to  exercise,  without  restraint,  his  art,  trade,  or  profession,  and  such  has 
been  the  law  of  France  and  her  colonies  ever  since,  and  that  law  pre- 
vailed in  Louisiana  at  the  time  of  her  cession  to  the  United  States. 
Since  then,  notwithstanding  the  existence  in  that  State  of  the  civil  law  as 
the  basis  of  her  jurisprudence,  freedom  of  pursuit  has  been  always  recog- 
nized as  the  common  right  of  her  citizens.  But  were  this  otherwise,  the 
fourteenth  amendment  secures  the  like  protection  to  all  citizens  in  that 
State  against  any  abridgment  of  their  comm  m rights,  as  in  other  States. 
That  amendment  was  intended  to  give  practical  effect  to  the  declaration 
of  1776  of  inalienable  rights,  rights  which  are  the  gift  of  the  Creator, 
which  the  law  does  not  confer,  but  only  recognizes.  If  the  trader  in  Lon- 
don could  plead  that  he  was  a free  citizen  of  that  city  against  the  en- 
forcement to  his  injury  of  monopolies,  surely  under  the  fourteenth 
amendment  every  citizen  of  the  United  States  should  be  able  to  plead 
his  citizenship  of  the  Republic  as  a protection  against  any  similar  inva- 
sion of  his  privileges  and  immunities. 

“So  fundamental  has  this  privilege  of  every  citizen  to  be  free  from  dis- 
paraging and  unequal  enactments  in  the  pursuit  of  the  ordinary  avoca- 
tions of  life  been  regarded,  that  few  instances  have  arisen  where  the  prin- 
ciple has  been  so  far  violated  as  to  call  for  the  interposition  of  the  courts. 
But  whenever  this  has  occurred,  with  the  exception  of  the  present  cases 
from  Louisiana,  which  are  the  most  barefaced  and  flagrant  of  all,  the 
enactment  interfering  with  the  privilege  of  the  citizen  has  been  pro- 


* Journals,  of  Congress,  Vol.  1,  pp.  28-30. 


155 


nounced  illegal  and  void.  When  a case  under  the  same  law  under  which 
the  present  cases  have  arisen  came  before  the  Circuit  Court  of  the  United 
States  in  the  District  of  Louisiana,  there  was  no  hesitation  on  the  part  of 
the  court  in  declaring  the  law,  in  its  exclusive  features,  to  be  an  invasion 
of  one  of  the  fundamental  privileges  of  the  citizen."-  The  presiding  jus- 
tice, in  delivering  the  opinion  of  the  court,  observed  that  it  might  be  dilfi- 
cult  to  enumerate  or  define  what  were  the  essential  privileges  of  a citizen 
of  the  United  States,  which  a State  could  not  by  its  laws  invade,  but  that 
so  far  as  the  question  under  consideration  was  concerned,  it  might  be 
safely  said  that  ‘ it  is  one  of  the  privileges  of  every  American  citizen  to 
adopt  and  follow  such  lawful  industrial  pursuit,  not  injurious  to  the 
community,  as  he  may  see  fit,  without  unreasonable  regulation  or  mo- 
lestation, and  without  being  restricted  by  any  of  those  unjust,  oppressive, 
and  odious  monopolies  or  exclusive  privileges  which  have  been  con- 
demned by  all  free  governments.’  And  again,  ' there  is  no  more  sacred 
right  of  citizenship  than  the  right  to  pursue  unmolested  a lawful  employ- 
ment in  a lawful  manner.  It  is  nothing  more  nor  less  than  the  sacred 
right  of  labor.’  ” 

Other  cases  were  cited  in  support  of  the  position  of  the 
opinion.  The  Judge  concluded  as  follows  : 

“ In  all  these  cases  there  is  a recognition  of  the  equality  of  right  among 
citizens  in  the  pursuit  of  the  ordinary  avocations  of  life,  and  a declara- 
tion that  all  grants  of  exclusive  privileges,  in  contravention  of  this 
equality,  are  against  common  right  and  void. 

" This  equality  of  right,  with  exemption  from  all  disparaging  and  partial 
enactments,  in  the  lawful  pursuits  of  life,  throughout  the  whole  country, 
is  the  distinguishing  privilege  of  citizens  of  the  United  States.  To  them, 
everywhere,  all  pursuits,  all  professions,  all  avocations  are  open  without 
other  restrictions  than  such  as  are  imposed  equally  upon  all  others  of 
the  same  age,  sex,  and  condition.  The  State  may  prescribe  such  regula- 
tions for  every  pursuit  and  calling  of  life  as  will  promote  the  public 
health,  secure  the  good  order  and  advance  the  general  prosperity  of 
society,  but  when  once  prescribed,  the  pursuit  or  calling  must  be  free  to 
be  followed  by  every  citizen  who  is  within  the  conditions  designated, 
and  will  conform  to  the  regulations.  This  is  the  fundamental  idea  upon 
which  our  institutions  rest,  and  unless  adhered  to  in  the  legislation  of 
the  country  our  government  will  be  a republic  only  in  name.  The  four- 
teenth amendment,  in  my  judgment,  makes  it  essential  to  the  validity  of 
the  legislation  of  every  State  that  this  equality  of  right  should  be  re- 
spected. How  widely  this  equality  has  been  departed  from ; how  en- 
tirely rejected  and  trampled  upon  by  the  act  of  Louisiana,  I have  already 
shown.  And  it  is  to  me  a matter  of  profound  regret  that  its  validity  is 


* Live  Stock,  &c.,  Association  vs.  The  Crescent  City,  &c.,  Company,  1 
Abbott’s  U.  S.  Rep.,  p.  398. 


156 


recognized  by  a majority  of  this  court,  for  by  it  tbe  right  of  free  labor, 
one  of  the  most  sacred  and  imprescriptible  rights  of  man,  is  violated.* 
As  stated  by  the  Supreme  Court  of  Connecticut  in  the  case  cited,  grants 
of  exclusive  privileges,  such  as  is  made  by  tbe  act  in  question,  are  op- 
posed to  the  whole  theory  of  free  government,  and  it  requires  no  aid  from 
any  bill  of  rights  to  render  them  void.  That  only  is  a free  government, 
in  the  American  sense  of  the  term,  under  which  the  inalienable  right  of 
every  citizen  to  pursue  his  happiness  is  unrestrained,  except  by  just, 
equal,  and  impartial  laws.”!- 


The  Power  of  the  State  to  Control  the  Compensation 
Receivable  for  the  Use  of  Private  Property,  and  for 
Services  in  connection  with  it. — The  Chicago  Ware- 
house Case. 

It  is  a recognized  principle  under  all  governments  that 
every  one  must  hold,  use,  and  enjoy  his  property  subject 
to  such  restrictions  as  the  legislative  authority  of  the  State 


*“The  property  which  every  man  lias  in  bis  own  labor,”  says  Adam 
Smith,  “as  it  is  the  original  foundation  of  all  other  property,  so  it  is  the 
most  sacred  and  inviolable.  The  patrimony  of  the  poor  man  lies  in  the 
strength  and  dexterity  of  his  own  hands ; and  to  hinder  him  from  em- 
ploying this  strength  and  dexterity  in  what  manner  he  thinks  proper, 
without  injury  to  his  neighbor,  is  a plain  violation  of  this  most  sacred 
property.  It  is  a manifest  encroachment  upon  the  just  liberty  both  of 
the  workman  and  of  those  who  might  be  disposed  to  employ  him.  As  it 
hinders  the  one  from  working  at  what  he  thinks  proper,  so  it  binders  the 
others  from  employing  whom  they  think  proper.” — (Smith’s  Wealth  of 
Nations,  b.  1,  ch.  10,  part  2.) 

In  the  edict  of  Louis  16th,  in  1776,  giving  freedom  to  trades  and  pro- 
fessions, prepared  by  his  minister,  Turgot,  lie  recites  the  contributions 
that  bad  been  made  by  tbe  guilds  and  trade  companies,  and  says  : “It 
was  the  allurement  of  these  fiscal  advantages  undoubtedly  that  prolonged 
tbe  illusion  and  concealed  the  immense  injury  they  did  to  industry  and 
their  infraction  of  natural  right.  This  illusion  had  extended  so  far  that 
some  persons  asserted  that  the  right  to  work  was  a royal  privilege  which 
tlie  king  might  sell,  and  that  his  subjects  were  bound  to  purchase  from 
him.  We  hasten  !o  correct  this  error  and  to  repel  the  conclusion.  God  in 
giving  to  man  wants  and  desires  rendering  labor  necessary  for  their  satis- 
faction, conferred  the  right  to  labor  upon  all  men,  and  this  property  is 
the  first,  most  sacred  and  imprescriptible  of  all.”  . . . He,  therefore, 

regards  it  “ as  the  first  duty  of  his  justice,  and  the  worthiest  act  of  be- 
nevolence, to  free  his  subjects  from  auy  restriction  upon  this  inalienable 
right  of  humanity.” 

j-  “ Civil  liberty,  the  great  end  of  all  human  society  and  government,  is 
that  state  in  which  each  individual  has  the  power  to  pursue  his  own  hap- 
piness according  to  his  own  views  of  his  interest,  and  the  dictates  of  his 
conscience,  unrestrained,  except  by  equal,  just,  and  impartial  laws.” — (1 
Sharsvvood’s  Blackstone,  127,  note  8.) 


157 


may  prescribe  for  the  good  order,  peace,  health,  and  morals 
of  the  community,  and  so  as  not  to  interfere  with  the 
equal  use  and  enjoyment  by  others  of  their  property. 
And  every  one  must,  also,  hold  bis  property  subject  to 
taxation  for  the  support  of  government,  or  to  be  appro- 
priated for  public  purposes,  upon  a regular  appraisement 
and  payment  of  its  value.  But  unless  there  is  some  special 
privilege  conferred  by  the  government  in  connection  with 
one’s  property  or  with  its  use,  interference  with  his  con- 
trol over  it  for  any  other  purpose  has  not  generally  been 
considered  in  this  country,  of  late  years,  a legitimate  sub- 
ject of  legislation.  Formerly,  in  European  governments, 
where,  theoretically,  all  power  was  in  the  sovereign,  or  in 
legislative  assemblies  or  councils  sitting  under  his  sanction, 
the  case  was  different.  Numerous  regulations,  as  to  the 
use  of  property  and  the  compensation  receivable  for  its 
use,  were  there  prescribed  by  law.  In  England,  also,  this 
was  a common  thing  ; and  many  acts  of  legislation  have 
been  adopted  in  this  country  from  the  fact  that  precedents 
for  like  legislation  have  existed  there,  without  considering 
their  propriety  or  validity  under  our  different  system. 

In  the  recent  case  of  Munn  & Scott  against  the  State 
of  Illinois,  this  subject  was  brought  to  the  consideration 
and  judgment  of  the  Supreme  Court  of  the  United 
States,  and  the  decision  rendered  has  attracted  unusual 
attention  as  indicating  a departure  from  what  was  pre- 
viously considered  to  be  the  settled  rule  in  this  country. 
Munn  & Scott  were  warehousemen  in  Chicago,  Illinois, 
engaged  in  the  storage  of  grain.  They  had  constructed 
their  warehouse  and  elevator  in  1862  with  their  own 
means,  upon  ground  leased  by  them  for  that  purpose;  and 
from  that  time  until  the  filing  of  an  information  against 
them  by  the  State,  they  had  transacted  the  business  of  re- 
ceiving and  storing  grain  for  hire.  The  rates  of  storage 
charged  by  them  were  annually  established  by  arrange- 
ment with  the  owners  of  different  elevators  in  Chicago, 
and  were  published  in  the  month  of  January.  In  1870 


158 


the  State  of  Illinois  adopted  a new  constitution,  and  by  it 
“ all  elevators  or  storehouses  where  grain,  or  other  prop- 
erty, is  stored  for  a compensation,  whether  the  property 
stored  be  kept  separate  or  not,  are  declared  to  be  public 
warehouses.” 

In  April,  1871,  the  legislature  of  the  State  passed  an 
act  to  regulate  these  warehouses,  thus  declared  to  be  pub- 
lic, and  the  warehousing  and  inspection  of  grain, 'and  to 
give  effect  to  this  article  of  the  constitution.  By  that  act, 
public  warehouses,  as  defined  in  the  constitution,  were  di- 
vided into  three  classes,  the  first  of  which  embraced  all 
warehouses,  elevators,  or  granaries  located  in  cities  having 
not  less  than  one  hundred  thousand  inhabitants,  in  which 
grain  was  stored  in  bulk,  and  the  grain  of  different,  owners 
was  mixed  together,  or  stored  in  such  manner  that  the 
identity  of  different  lots  or  parcels  could  not  be  accurately 
preserved.  To  this  class  the  warehouse  of  Munn  & Scott 
belonged.  The  act  prescribed  the  maximum  of  charges 
which  the  proprietor,  lessee,  or  manager  of  the  warehouse 
was  allowed  to  make  for  storage  and  handling  of  grain, 
including  the  cost  of  receiving  and  delivering  it,  for  the 
first  thirty  days  or  any  part  thereof,  and  for  each  succeed- 
ing fifteen  days  or  any  part  thereof  ; and  it  required  him 
to  procure  from  the  circuit  court  of  the  county  a license 
to  transact  business  as  a public  warehouseman,  and  to  give 
a bond  to  the  people  of  the  State  in  the  penal  sum  of  ten 
thousand  dollars  for  the  faithful  performance  of  his  duty 
as  such  warehouseman  of  the  first  class,  and  for  his  full 
and  unreserved  compliance  with  all  laws  of  the  State  in 
relation  thereto.  The  license  was  made  revocable  by  the 
circuit  court  upon  a summary  proceeding  for  an}r  violation 
of  such  laws.  And  a penalty  was  imposed  upon  every 
person  transacting  business  as  a public  warehouseman  of 
the  first  class  without  first  procuring  a license,  or  continu- 
ing in  such  business  after  his  license  had  been  revoked,  of 
not  less  than  one  hundred  or  more  than  five  hundred  dol- 
lars for  each  day  on  which  the  business  was  thus  carried 


159 


on.  The  court  was  also  authorized  to  refuse  for  one  year 
to  renew  the  license,  or  to  grant  a new  one  to  any  person 
whose  license  had  been  revoked.  The  maximum  of 
charges  prescribed  by  the  act  for  the  receipt  and  storage 
of  grain  was  different  from  that  which  Munn  & Scott  had 
previously  charged,  and  which  had  been  agreed  to  by  the 
owners  of  the  grain.  More  extended  period!  of  storage 
were  required  of  them  than  they  formerly  gave  for  the 
same  charges.  What  they  formerly  charged  for  the  first 
twenty  days  of  storage,  the  act  allowed  them  to  charge 
only  for  the  first  thirty  days  of  storage  ; and  what  they 
formerly  charged  for  each  succeeding  ten  days  after  the 
first  twenty,  the  act  allowed  them  to  charge  only  for  each 
succeeding  fifteen  days  after  the  first  thirty.  Munn  & 
Scott,  deeming  that  they  had  a right  to  nse  their  own  prop- 
erty in  such  manner  as  they  desired,  not  inconsistent  with 
the  equal  right  of  others  to  a like  use,  and  denying  the 
power  of  the  legislature  to  fix  prices  for  the  use  of  their 
property  and  their  services  in  connection  with  it,  refused 
to  comply  with  the  act  by  taking  out  the  license  and  giv- 
ing the  bond  required  ; but  continued  to  carry  on  the  busi- 
ness and  to  charge  for  receiving  and  storing  grain  such 
prices  as  they  had  been  accustomed  to  charge,  and  as  had 
been  agreed  upon  between  them  and  the  owners  of  the 
grain.  For  thus  transacting  their  business  without  pro- 
curing a license  as  required  by  the  act,  they  were  prose- 
cuted and  fined,  and  the  judgment  against  them  was 
affirmed  by  the  Supreme  Court  of  the  State.  The  case 
was  then  carried  to  the  Supreme  Court  of  the  United 
States. 

The  question  thus  presented  for  adjudication  was  whether 
it  is  within  the  competency  of  a State  to  fix  the  compensa- 
tion which  an  individual  may  receive  for  the  use  of  his 
own  property  in  his  private  business  and  for  his  services  in 
connection  with  it  ? It  was  argued  with  great  ability  by 
distinguished  counsel,  Messrs.  Groudy  and  Jewett,  for 
Munn  & Scott,  and  the  Atfjprn e}T-Ge n era!  of  Illinois,  for 


1G0 


the  State.  The  Supreme  Court  affirmed  the  judgment, 
two  judges  only,  Field  arid  Strong,  disagreeing  with  it. 
Chief  Justice  Waite  gave  the  opinion  of  the  court;  Judge 
Field  filed  a dissenting  opinion. 

The  Chief  Justice,  after  stating  generally  that  when 
one  becomes  a member  of  society  he  necessarily  parts  with 
some  rights  or  privileges  which  as  an  individual,  not 
affected  by  his  relations  to  others,  he  might  retain;  that 
government  acting  for  all,  under  what  are  termed  its  po- 
lice powers,  regulates  the  conduct  of  its  citizens  toward 
each  other,  and  the  manner  in  which  each  shall  use  his 
property  when  such  regulation  becomes  necessary  for  the 
public  good,  and  that  in  their  exercise  it  has  been  custom- 
ary in  England  from  time  immemorial,  and  in  this  country 
from  its  first  colonization,  to  regulate  ferries,  common  car- 
riers, hackmen,  bakers,  millers,  wharfingers,  and  innkeep- 
ers, said  as  follows : 

“ From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of  the 
fourteenth  amendment,  it  was  not  supposed  that  statutes  regulating  the 
use,  or  even  the  price  of  the  use,  of  private  property  necessarily  deprived 
an  owner  of  his  property  without  due  process  of  law.  Under  some  cir- 
cumstances they  may,  but  not  under  all.  The  amendment  does  not 
change  the  law  in  this  particular ; it  simply  prevents  the  States  from 
doing  that  which  will  operate  as  such  a deprivation. 

“This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within  and 
what  is  without  its  operative  effect.  Looking,  then,  to  the  common  law, 
from  whence  came  the  right,  which  the  Constitution  protects,  we  find  that 
when  private  property  is  ‘affected  with  a public  interest,  it  ceases  to  be 
juris privati  only.’  This  was  said  by  Lord  Chief  Justice  Hale  more  than 
two  hundred  years  ago,  in  his  treatise  Be  Portibus  Maris,  (1  Harg.  Law 
Tracts,  78,)  and  has  been  accepted  without  objection  as  an  essential  ele- 
ment in  the  law  of  property  ever  since.  Property  does  become  clothed 
with  a public  interest  when  used  in  a manner  to  make  it  of  public  conse- 
quence, and  affect  the  community  at  large.  When,  therefore,  one  de- 
votes his  property  to  a use  in  which  the  public  has  an  interest,  he,  in 
effect,  grants  to  the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good,  to  the  extent  of  the  inter- 
est he  has  thus  created.  He  may  withdraw  his  grant  by  discontinuing 
the  use;  but  so  long  as  he  maintains  the  use  he  must  submit  to  the  con- 
trol.”—(94  U.  S.,  125-6.) 


161 


The  doctrine  here  announced  as  to  property  being 
affected  with  a public  interest,  and  the  statement  of  the 
circumstances  under  which  property  is  thus  affected,  con- 
stitute the  principle  of  the  decision,  the  reason  of  the  judg- 
ment rendered. 

Several  cases  were  also  cited  by  the  Chief  Justice  in 
supposed  support  of  his  position.  Judge  Field,  as  stated 
above,  tiled  a dissenting  opinion.  In  that  he  answered  the 
position  of  the  Chief  Justice,  and  examined  the  authorities 
referred  to  by  him,  and  in  the  view  of  many  very  able 
judges  and  lawyers  overthrew  the  position  and  showed 
that  the  authorities  sustain  the  very  contrary  of  the  doc- 
trine to  uphold  which  they  were  invoked.  Speaking  for 
himself  and  his  associate  the  Judge  said  as  follows : 

“The  declaration  of  the  constitution  [of  Illinois]  of  1870,  that  pri- 
vate buildings  used  for  private  purposes  shall  be  deemed  public  institu- 
tions, does  not  make  them  so.  The  receipt  and  storage  of  grain  in  a build- 
ing erected  by  private  means  for  that  purpose  does  not  constitute  the 
building  a public  warehouse.  There  is  no  magic  in  the  language,  though 
used  by  a constitutional  convention,  which  can  change  a private  business 
into  a public  one,  or  alter  the  character  of  the  building  in  which  the 
business  is  transacted.  A tailor’s  or  a shoemaker’s  shop  would  still  re- 
tain its  private  character  even  though  the  assembled  wisdom  of  the  State 
should  declare  by  organic  act  or  legislative  ordinance  that  such  a place 
was  a public  workshop,  and  that  the  workmen  were  public  tailors  or  pub- 
lic shoemakers.  One  might  as  well  attempt  to  change  the  nature  of  col- 
ors by  giving  them  a new  designation.  The  defendants  were  no  more 
public  warehousemen,  as  justly  observed  by  counsel,  than  the  merchant 
who  sells  his  merchandise  to  the  public  is  a public  merchant,  or  the 
blacksmith  who  shoes  horses  for  the  public  is  a public  blacksmith  ; and 
it  was  a strange  notion  that  by  calling  them  so  they  would  be  brought 
under  legislative  control. 

“ The  Supreme  Court  of  the  State — divided,  it  is  true,  by  three  to  two  of 
its  members — has  held  that  this  legislation  was  a legitimate  exercise  of 
State  authority  over  private  business  ; and  the  Supreme  Court  of  the 
United  States,  two  only  of  its  members  dissenting,  has  decided  that  there 
is  nothing  in  the  Constitution  of  the  United  States,  or  its  recent  amend- 
ments. which  impugns  its  validity.  It  is,  therefore,  with  diffidence  I 
presume  to  question  the  soundness  of  the  decision. 

“ The  validity  of  the  legislation  was,  among  other  grounds,  assailed  in 
the  State  court  as  being  in  conflict  with  that  provision  of  the  State  con- 
stitution which  declares  that  no  person  shall  be  deprived  of  life,  liberty, 
11 


102 


or  property  without  clue  process  of  law,  and  with  that  provision  of  the 
14th  amendment  of  the  federal  Constitution  which  imposes  a similar  re- 
striction upon  the  action  of  the  State.  The  State  court  held  in  substance 
that  the  constitutional  provision  was  not  violated  so  long  as  the  owner 
was  not  deprived  of  the  title  and  possession  of  his  property  ; and  that  it 
did  not  deny  to  the  legislature  the  power  to  make  all  needful  rules  and 
regulations  respecting  the  use  and  enjoyment  of  the  property,  referring, 
in  support  of  the  position,  to  instances  of  its  action  in  prescribing  the  in- 
terest on  money,  in  establishing  and  regulating  public  ferries  and  public 
mills,  and  fixing  the  compensation  in  the  shape  of  tolls,  and  in  delegating 
power  to  municipal  bodies  to  regulate  the  charges  of  liaekmen  and  dray- 
men and  the  weight  and  price  of  bread.  In  this  court  the  legislation  was 
also  assailed  on  the  same  ground,  our  jurisdiction  arising  upon  the  clause 
of  the  14th  amendment  ordaining  that  no  State  shall  deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law.  But  it  would 
seem  from  its  opinion  that  the  court  holds  that  property  loses  something 
of  its  private  character  when  employed  in  such  a way  as  to  be  generally 
useful.  The  doctrine  declared  is  that  property  1 becomes  clothed  with  a 
public  interest  when  used  in  a manner  to  make  it  of  public  consequence 
and  affect  the  community  at  large;’  and  from  such  clothing  the  right  of 
the  legislature  is  deduced  to  control  the  use  of  the  property  and  to  de- 
termine the  compensation  which  the  owner  may  receive  for  it.  When 
Sir  Matthew  Hale,  and  the  sages  of  the  law  in  his  day,  spoke  of  property 
as  affected  by  a public  interest,  and  ceasing  from  that  cause  to  he  juris 
privati  solely,  that  is,  ceasing  to  be  held  merely  in  private  right,  they  re- 
ferred to  property  dedicated  by  the  owner  to  public  uses,  or  to  property 
the  use  of  which  was  granted  by  the  government,  or  in  connection  with 
which  special  privileges  were  conferred.  Unless  the  property  was  thus 
dedicated,  or  some  right  bestowed  by  the  government  was  held  with  the 
property,  either  by  specific  grant  or  by  prescription  of  so  long  a time  as 
to  imply  a grant  originally,  the  property  was  not  affected  by  any  public 
interest  so  as  to  be  taken  out  of  the  category  of  property  held  in  private 
right.  But  it  is  not  in  any  such  sense  that  the  terms  ‘ clothing  property 
with  a public,  interest  ’ are  used  in  this  case.  From  the  nature  of  the 
business  under  consideration — the  storage  of  grain — which,  in  any  sense 
in  which  the  word  can  be  used,  is  a private  business,  in  which  the  public 
are  interested  only  as  they  are  interested  in  the  storage  of  other  products 
of  the  soil,  or  in  articles  of  manufacture,  it  is  clear  that  the  court  intended 
to  declare  that  whenever  one  devotes  his  property  to  a business  which  is 
useful  to  the  public — ‘affects  the  community  at  large’ — the  legislature 
can  regulate  the  compensation  which  the  owner  may  receive  for  its  use 
and  for  his  own  services  in  connection  with  it.  1 When,  therefore,’  says  the 
court,  ‘one  devotes  his  property  to  a use  in  which  the  public  has  an  in- 
terest, he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and  must 
submit  to  be  controlled  by  the  public  for  the  common  good  to  the  extent 
of  the  interest  he  has  thus  created.  He  may  withdraw  his  grant  by  dis- 


1 03 


continuing  the  use,  but  so  long  as  he  maintains  the  use  he  must  submit 
to  the  control.’  The  building  used  by  the  defendants  was  for  the  storage 
of  grain;  in  such  storage,  says  the  couit,  the  public  has  an  interest; 
therefore  the  defendants,  by  devoting  the  building  to  that  storage,  have 
granted  to  the  public  an  interest  in  that  use,  and  must  submit  to  have 
their  compensation  regulated  by  the  legislature. 

“If  this  be  sound  law,  if  there  be  no  protection  either  in  the  principles 
upon  which  our  republican  government  is  founded,  or  in  the  prohibitions 
of  the  Constitution  against  such  invasion  of  private  rights,  all  property 
and  all  business  in  the  State  are  held  at  the  mercy  of  a majority  of  its 
legislature.  The  public  has  no  greater  interest  in  the  use  of  buildings 
for  the  storage  of  grain  than  it  has  in  the  use  of  buildings  for  the  resi- 
dences of  families,  nor,  indeed,  anything  like  so  great  an  interest ; and, 
according  to  the  doctrine  announced,  the  legislature  may  fix  the  rent  of 
all  tenements  used  for  residences,  without  reference  to  the  cost  of  their 
erection.  If  the  owner  does  not  like  the  rates  prescribed,  he  may  cease 
renting  his  houses.  He  has  granted  to  the  public,  says  the  court,  an  in- 
terest in  the  use  of  the  buildings,  and  ‘ he  may  withdraw  his  grant  by 
discontinuing  the  use ; but  so  long  as  he  maintains  the  use  he  must  sub- 
mit to  the  control.’  The  public  is  interested  in  the  manufacture  of  cot- 
ton, woolen,  and  silken  fabrics,  in  the  construction  of  machinery,  in  the 
printing  and  publication  of  books  and  periodicals,  and  in  the  making  of 
utensils  of  every  variety,  useful  and  ornamental ; indeed,  there  is  hardly 
an  enterprise  or  business  engaging  the  attention  and  labor  of  any  consid- 
erable portion  of  the  community  in  which  the  public  has  not  an  interest 
in  the  sense  in  which  that  term  is  used  by  the  court  in  its  opinion ; and 
the  doctrine  which  allows  the  legislature  to  interfere  with  and  regulate 
the  charges  which  the  owners  of  property  thus  employed  shall  make  for 
its  use,  that  is,  the  rates  at  which  all  these  different  kinds  of  business 
shall  be  carried  on,  has  never  before  been  asserted,  so  far  as  I am  aware, 
by  any  judicial  tribunal  in  the  United  States. 

“ The  doctrine  of  the  State  court,  that  no  one  is  deprived  of  his  prop- 
erty, within  the  meaning  of  the  constitutional  inhibition,  so  long  as  he 
retains  its  title  and  possession,  and  the  doctrine  of  this  court,  that  when- 
ever one’s  property  is  used  in  such  a manner  as  to  affect  the  community 
at  large,  it  becomes  by  that  fact  clothed  with  a public  interest  and  ceases 
to  be  juris  privati  on!}-,  appear  to  me  to  destroy  for  all  useful  purposes  the 
efficacy  of  the  constitutional  guaranty.  All  that  is  beneficial  in  property 
arises  from  its  use  and  the  fruits  of  that  use ; and  whatever  deprives  a 
person  of  them  deprives  him  of  all  that  is  desirable  or  valuable  in  the 
title  and  possession.  If  the  constitutional  guaranty  extends  no  further 
than  to  prevent  a deprivation  of  title  and  possession,  and  allows  a de- 
privation of  use  and  the  fruits  of  that  use,  it  does  not  merit  the  encomi- 
ums it  has  received.  Unless  I have  misread  the  history  of  the  provision 
now  incorporated  into  all  our  State  constitutions,  and  by  the  fifth  and 
fourteenth  amendments  into  our  federal  Constitution,  and  have  misun- 


164 


derstood  the  interpretation  it  has  received,  it  is  not  thus  limited  in  its 
scope  and  thus  impotent  for  good.  It  has  a much  more  extended  opera- 
tion than  either  court,  State  or  federal,  has  given  to  it.  The  provision,  it 
is  to  be  observed,  places  property  under  the  same  protection  as  life  and 
liberty.  Except  by  due  process  of  law  no  State  can  deprive  any  person 
of  either.  The  provision  has  been  supposed  to  secure  to  every  individual 
the  essential  conditions  for  the  pursuit  of  happiness,  and  for  that  reason 
has  not  been  heretofore,  and  should  never  be,  construed  in  any  narrow  or 
restricted  sense. 

“No  State  ‘shall  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law,’  says  the  14th  amendment  to  the  Constitution. 
By  the  term  ‘ life,’  as  here  used,  something  more  is  meant  than  mere  ani- 
mal existence.  The  inhibition  against  its  deprivation  extends  to  all  those 
limbs  and  faculties  by  which  life  is  enjoyed.  The  provision  equally  pro- 
hibits the  mutilation  of  the  body  by  the  amputation  of  an  arm  or  leg,  or 
the  putting  out  of  an  eye,  or  the  destruction  of  any  other  organ  of  the 
body  through  which  the  soul  communicates  with  the  outer  world.  The 
deprivation,  not  only  of  life,  but  of  whatever  God  has  given  to  every  one 
with  life,  for  its  growth  and  enjoyment,  is  prohibited  by  the  provision  in 
question,  if  its  efficacy  be  not  frittered  away  by  judicial  decision. 

“By  the  term  ‘liberty,’  as  used  in  the  provision,  something  more  is 
meant  than  mere  freedom  from  physical  restraint  or  the  bounds  of  a 
prison.  It  meaus  freedom  to  go  where  one  may  choose,  and  to  act  in  such 
manner,  not  inconsistent  with  the  equal  rights  of  others,  as  his  judgment 
may  dictate  for  the  promotion  of  his  happiness — that  is,  to  pursue  such 
callings  and  avocations  as  may  be  most  suitable  to  develop  his  capacities 
and  give  to  them  their  highest  enjoyment. 

“ The  same  liberal  construction  which  is  required  for  the  protection  of 
life  aud  liberty,  in  all  particulars  in  which  life  and  liberty  are  of  any 
value,  should  be  applied  to  the  protection  of  private  property.  If  the 
legislature  of  a State,  under  pretence  of  providing  for  the  public  good, 
or  for  any  other  reason,  can  determine,  against  the  consent  of  the  owner, 
the  uses  to  which  private  property  shall  be  devoted,  or  the  prices  which 
the  owner  shall  receive  for  its  uses,  it  can  deprive  him  of  the  property  as 
completely  as  by  a special  act  for  its  confiscation  or  destruction.  If,  for 
instance,  the  owner  is  prohibited  from  using  his  building  for  the  purposes 
for  which  it  was  designed,  it  is  of  little  consequence  that  he  is  permitted 
to  retain  the  title  and  possession.  Or  if  he  is  compelled  to  take  as  com- 
pensation for  its  use  less  than  the  expenses  to  which  he  is  subjected  by 
its  ownership,  he  is  for  all  practical  purposes  deprived  of  the  property,  as 
effectually  as  if  the  legislature  had  ordered  his  forcible  dispossession.  If 
it  be  admitted  that  the  legislature  has  any  control  over  the  compen- 
sation, the  extent  of  that  compensation  becomes  a mere  matter  of  legis- 
lative discretion.  The  amount  fixed  will  operate  as  a partial  destruc- 
tion of  the  value  of  the  property,  if  it  fall  below  the  amount  which  the 
owner  would  obtain  by  contract,  and,  practically,  as  a complete  destruc- 


165 


tion,  if  it  be  less  than  the  cost  of  retaining  its  possession.  There  is,  in- 
deed, no  protection  of  any  value  under  the  constitutional  provision  which 
does  not  extend  to  the  use  and  income  of  the  property  as  well  as  to  its 
title  and  possession. 

‘'This  court  has  heretofore  held  in  many  instances  that  a constitutional 
provision  intended  for  the  protection  of  rights  of  private  property  should 
be  liberally  construed.  It  has  so  held  in  the  numerous  cases  where  it  has 
been  called  upon  to  give  effect  to  the  provision  prohibiting  the  States 
from  legislation  impairing  the  obligation  of  contracts;  the  provision  be- 
ing construed  not  only  to  secure  the  contract  itself  from  direct  attack, 
but  all  the  essential  incidents  which  give  it  value  and  enable  its  owner 
to  enforce  it.  Thus,  in  Bronson  vs.  Ivinzie,  reported  in  the  1st  of  How- 
ard, it  was  held  that  an  act  of  the  Legislature  of  Illinois  giving  to  a mort- 
gagor twelve  months  within  which  to  redeem  his  mortgaged  property 
from  a judicial  sale,  and  prohibiting  its  sale  for  less  than  two-thirds  of  its 
appraised  value,  was  void  as  applied  to  mortgages  executed  prior  to  its 
passage.  It  was  contended,  fn  support  of  the  act,  that  it  affected  only 
the  remedy  of  the  mortgagee  and  did  not  impair  the  contract;  but  the 
court  replied  that  there  was  no  substantial  difference  between  a retro- 
spective law  declaring  a particular  contract  to  be  abrogated  and  void  and 
one  which  took  away  all  remedy  to  enforce  it,  or  encumbered  the  remedy 
with  conditions  that  rendered  it  useless  or  impracticable  to  pursue  it. 
And,  referring  to  the  constitutional  provision,  the  court  said,  speaking 
through  Mr.  Chief  Justice  Taney,  that  ‘ it  would  be  unjust  to  the  mem- 
ory of  the  distinguished  men  who  framed  it  to  suppose  that  it  was  de- 
signed to  protect  a mere  barren  and  abstract  right,  without  any  practical 
operation  upon  the  business  of  life.  It  was  undoubtedly  adopted  as  a 
part  of  the  Constitution  for  a great  and  useful  purpose.  It  was  to  main- 
tain the  integrity  of  contracts  and  to  secure  their  faithful  execution 
throughout  this  Union  by  placing  them  uuder  the  protection  of  the  Con- 
stitution of  the  United  States.  And  it  would  but  ill  become  this  court, 
under  any  circumstances,  to  depart  from  the  plain  meaning  of  the  words 
used  and  to  sanction  a distinction  between  the  right  and  the  remedy 
which  would  render  this  provision  illusive  and  nugatory,  mere  words  of 
form,  affording  no  protection  and  producing  no  practical  result.’ 

“And  in  Pumpelly  vs.  Green  Bay  Company,  reported  in  the  13th  of 
Wallace,  the  language  of  the  court  is  equally  emphatic.  That  case  arose 
in  Wisconsin,  the  constitution  of  which  declares,  like  the  constitutions  of 
nearly  all  the  States,  that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation  ; and  this  court  held  that  the  flooding  of 
one’s  land  by  a dam  constructed  across  a river  under  a law  of  the  State 
was  a taking  within  the  prohibition,  and  required  compensation  to  be 
made  to  the  owner  of  the  land  thus  flooded.  The  court,  speaking- 
through  Mr.  Justice  Miller,  said : ‘It  would  be  a very  curious  and  un- 
satisfactory result,  if,  in  construing  a provision  of  constitutional  law, 
always  understood  to  have  been  adopted  for  protection  and  security  to 


166 


the  rights  of  the  individual  as  against  the  government,  and  which  lias 
received  the  commendation  of  jurists,  statesmen,  and  commentators,  as 
placing  the  just  principles  of  the  common  law  on  that  subject  beyond  the 
power  of  ordinary  legislation  to  change  or  control  them,  it  shall  lie  held 
that  if  the  government  refrains  from  the  absolute  conversion  of  real  prop- 
erty to  the  uses  of  the  public  it  can  destroy  its  value  entirely,  can  inflict 
irreparable  and  permanent  injury  to  any  extent,  can,  in  effect,  subject  it 
to  total  destruction,  without  making  any  compensation,  because,  in  the 
narrowest  sense  of  the  word,  it  is  not  taken  for  the  public  use.  Such  a 
construction  would  pervert  the  constitutional  provision  into  a restriction 
on  the  rights  of  the  citizen,  as  those  rights  stood  at  the  common  law,  in- 
stead of  the  government,  and  make  it  an  authority  for  invasion  of  private 
right  under  the  pretext  of  the  public  good,  which  had  no  warrant  in  the 
laws  or  practices  of  our  ancestors.’  The  views  expressed  in  these  citations, 
applied  to  this  case,  would  render  the  constitutional  provision  invoked 
by  the  defendants  effectual  to  protect  them  in  the  uses,  income,  and  rev- 
enues of  their  property  as  well  as  in  its  title  and  possession.  The  con- 
struction actually  given  by  the  State  court  and  by  this  court  makes  the 
provision,  in  the  language  of  Taney,  a protection  to  1 a mere  barren  and 
abstract  right,  without  any  practical  operation  upon  the  business  of  life,’ 
and  renders  it  ‘ illusive  and  nugatory,  mere  words  of  form,  affording  no 
protection  and  producing  no  practical  result.’ 

“ The  power  of  the  State  over  the  property  of  the  citizen  under  the 
constitutional  guaranty  is  well  defined.  The  State  may  take  his  prop- 
erty for  public  uses  upon  just  compensation  being  made  therefor.  It 
may  take  a portion  of  his  property  by  way  of  taxation  for  the  support  of 
the  government.  It  may  control  the  use  and  possession  of  his  property 
so  far  as  may  be  necessary  for  the  protection  of  the  rights  of  others, 
and  to  secure  to  them  the  equal  use  and  enjoyment  of  their  property. 
The  doctrine  that  each  one  must  so  use  his  own  as  not  to  injure  his 
neighbor — sic  utere  tuo  ut  alienum  non  hedas — is  the  rule  by  which  every 
member  of  society  must  possess  and  enjoy  his  property  ; and  all  legisla- 
tion essential  to  secure  this  common  and  equal  enjoyment  is  a legitimate 
exercise  of  State  authority.  Except  in  cases  where  property  may  be  de- 
stroyed to  arrest  a conflagration  or  the  ravages  of  pestilence,  or  be  taken 
under  the  pressure  of  an  immediate  and  overwhelming  necessity  to  pre- 
vent a public  calamity,  the  power  of  the  State  over  the  property  of  the 
citizen  does  not  extend  beyond  such  limits. 

“ It  is  true  that  the  legislation  which  secures  to  all  protection  in  their 
rights  and  the  equal  use  and  enjoyment  of  their  property  embraces  an  al- 
most infinite  variety  of  subjects.  Whatever  affects  the  peace,  good  order, 
morals,  and  health  of  the  community  comes  within  its  scope,  and  every 
one  must  use  and  enjoy  his  property  subject  to  the  restrictions  which 
such  legislation  imposes.  What  is  termed  the  police  power  of  the  State, 
which  from  the  language  often  used  respecting  it  one  would  suppose  to 
be  an  undefined  and  irresponsible  element  in  government,  can  only  in- 


167 


terfere  with  the  conduct  of  individuals  in  their  intercourse  with  each 
other,  and  in  the  use  of  their  property,  so  far  as  may  be  required  to  se- 
cure these  objects.  The  compensation  which  the  owners  of  property, 
not  having  any  special  rights  or  privileges  from  the  government-  in  con- 
nection with  it,  may  demand  for  its  use,  or  for  their  own  services  in 
union  with  it,  forms  no  element  of  consideration  in  prescribing  regula- 
tions for  that  purpose.  If  one  construct  a building  in  a city,  the  State, 
or  the  municipality  exercising  a delegated  power  from  the  State,  may 
require  its  walls  to  be  of  sufficient  thickness  for  the  uses  intended  ; it 
may  forbid  the  employment  of  inflammable  materials  in  its  construc- 
tion, so  as  not  to  endanger  the  safety  of  his  neighbors  ; if  designed  as  a 
theatre,  church,  or  public  hall,  it  may  prescribe  ample  means  of  egress  so 
as  to  afford  facility  for  escape  in  case  of  accident ; it  may  forbid  the 
storage  in  it  of  powder,  nitro-glycerine,  or  other  explosive  material ; it 
may  require  its  occupants  daily  to  remove  decayed  vegetable  and  animal 
matter  which  would  otherwise  accumulate  and  engender  disease ; it  may 
exclude  from  it  all  occupations  and  business  calculated  to  disturb  the 
neighborhood  or  infect-  the  air.  Indeed,  there  is  no  end  of  regulations 
with  respect  to  the  use  of  property  which  may  not  be  legitimately  pre- 
scribed, having  for  their  object  the  peace,  good  order,  safety,  and  health  of 
the  community,  thus  securing  to  all  the  equal  enjoyment  of  their  property ; 
but  in  establishing  these  regulations  it  is  evident  that  compensation  to  the 
owner  for  the  use  of  his  property,  or  for  his  services  in  union  with  it-,  is  not 
a matter  of  any  importance ; whether  it  be  one  sum  or  another  does  not  af- 
fect the  regulation,  either  in  respect  to  its  utility  or  mode  of  enforcement. 
One  may  go  in  like  manner  through  the  whole  round  of  regulations  auth- 
orized by  legislation.  State  or  municipal,  under  what  is  termed  the  police 
power,  and  in  no  instance  will  he  find  that  the  compensation  of  the  owner 
for  the  use  of  his  property  has  any  influence  in  establishing  them.  It  is 
only  where  some  right  or  privilege  is  conferred  by  the  government  or 
municipality  upon  the  owner  which  he  can  use  in  connection  with  his 
property,  or  by  means  of  which  the  use  of  his  property  is  rendered  more 
valuable  to  him,  or  he  thereby  enjoys  an  advantage  over  others,  that 
the  compensation  to  be  received  by  him  becomes  a legitimate  matter  of 
regulation.  Submission  to  the  regulation  of  compensation  in  such  cases 
is  an  implied  condition  of  the  grant,  and  the  State  in  exercising  its  power 
of  prescribing  the  compensation  only  determines  the  conditions  upon 
which  its  concession  shall  be  enjoyed.  When  the  privilege  ends  the 
power  of  regulation  ceases. 

“ Jurists  and  writers  on  public  law  Lfind  authority  for  the  exercise  of 
this  police  power  of  the  State  and  the  numerous  regulations  which  it 
prescribes  in  the  doctrine  already  stated,  that  every  one  must  use  and  en- 
joy his  property  consistently  with  the  rights  of  others  and  the  equal  use 
and  enjoyment  by  them  of  their  property.  ‘ The  police  power  of  the 
State,’  says  the  Supreme  Court  of  Vermont,  ‘ extends  to  the  protection  of 
the  lives,  limbs,  health,  comfort,  and  quiet  of  all  persons,  and  the  protec- 


168 


tion  of  all  property  in  the  State.  According  to  the  maxim,  sic  uierc  tuo 
ut  alienurri  non  leedas,  which  being  of  universal  application,  it  must,  of 
course,  be  within  the  range  of  legislative  action  to  define  the  mode  and 
manner  in  which  ever//  one  may  so  use  his  own  as  not  to  injure  others.'*  ‘We 
think  it  a settled  principle  growing  out  of  the  nature  of  well-ordered 
civil  society,’  says  the  Supreme  Court  of  Massachusetts, 1 that  every  holder 
of  property,  however  absolute  and  unqualified  may  he  his  title,  holds  it 
under  the  implied  liability  that  his  use  of  it  shall  not  he  injurious  in  the 
equal  enjoyment  of  others  having  an  equal  right  to  the  enjoyment  of  their  prop- 
erty, nor  injurious  to  the  rights  of  the  community . ’f  In  his  commentaries, 
after  speaking  of  the  protection  afforded  by  the  Constitution  to  private 
property,  Chancellor  Kent  says : 1 But  though  property  be  thus  protected, 
it  is  still  to  be  understood  that  the  lawgiver  has  the  right  to  prescribe  the 
mode  and  manner  of  using  it,  so  far  as  may  he  necessary  to  prevent  the  abuse 
of  the  right,  to  the  injury  or  annoyance  of  others,  or  of  the  public.  The  gov- 
ernment may,  by  general  regulations,  interdict  such  uses  of  property  as 
would  create  nuisances  and  become  dangerous  to  the  lives,  or  health,  or 
peace,  or  comfort  of  the  citizens.  Unwholesome  trades,  slaughter-houses, 
operations  offensive  to  the  senses,  the  deposit  of  powder,  the  application 
of  steam-power  to  propel  cars,  the  building  with  combustible  materials, 
and  the  burial  of  the  dead  may  all  be  interdicted  by  law,  in  the  midst  of 
dense  masses  of  population,  on  the  general  and  rational  principle  that  every 
person  ought  so  to  use  his  property  as  not  to  injure  his  neighbors,  and  that  pri- 
vate interest  must  he  subservient  to  the  general  interests  of  the  community. 'X 

“The  italics  in  these  citations  are  mine.  The  citations  show  what  I 
have  already  stated  to  be  the  case,  that  the  regulations  which  the  State, 
in  the  exercise  of  its  police  power,  authorizes  with  respect  to  the  use  of 
property  are  entirely  independent  of  any  question  of  compensation  for 
such  use  or  for  the  services  of  the  owner  in  connection  with  it. 

“ There  is  nothing  in  the  character  of  the  business  of  the  defendants  as 
warehousemen  which  called  for  the  interference  complained  of  in  this 
case.  Their  buildings  are  not  nuisances ; their  occupation  of  receiving 
and  storing  grain  infringes  upon  no  rights  of  others,  disturbs  no  neigh- 
borhood, infects  not  the  air,  and  in  no  respect  prevents  others  from  using 
and  enjoying  their  property  as  to  them  may  seem  best.  The  legislation 
in  question  is  nothing  less  than  a bold  assertion  of  absolute  power  by  the 
State  to  control  at  its  discretion  the  property  and  business  of  the  citizen, 
and  fix  the  compensation  he  shall  receive.  The  will  of  the  legislature  is 
made  the  condition  upon  which  the  owner  shall  receive  the  fruits  of  his 
property  and  the  just  reward  of  his  labor,  industry,  and  enterprise. 
‘ That  government,’  says  Story,  ‘ can  scarcely  be  deemed  to  be  free  where 
the  rights  of  property  are  left  solely  dependent  upon  the  will  of  a legisla- 


* Thorpe  vs.  Rutland  & Burlington  R.  R.  Co.,  27  Vt.,  149. 
f Commonwealth  vs.  Alger,  7 Cushing,  84. 

J 2 Kent,  340. 


169 


tive  body  without  any  restraint.  The  fundamental  maxims  of  a free 
government  seem  to  require  that  the  rights  of  personal  liberty  and  pri- 
vate property  should  be  held  sacred.’*  The  decision  of  the  court  in  this 
case  gives  unrestrained  license  to  legislative  will. 

” The  several  instances  mentioned  by  counsel  in  the  argument  and  by 
the  court  in  its  opinion,  in  which  legislation  has  fixed  the  compensation 
which  parties  may  receive  for  the  use  of  their  property  and  services,  do 
not  militate  against  the  views  I have  expressed  of  the  power  of  the  State 
over  the  property  of  the  citizen.  They  were  mostly  cases  of  public  fer- 
ries. bridges,  and  turnpikes,  of  wharfingers,  hackmeu,  and  draymen,  and 
of  interest  on  money.  In  all  these  cases,  except  that  of  interest  on  money, 
which  I shall  presently  notice,  there  was  some  special  privilege  granted 
by  the  State  or  municipality  ; and  no  one.  I suppose,  has  ever  contended 
that  the  State  had  not  aright  to  prescribe  the  conditions  upon  which 
such  privilege  should  be  enjoyed.  The  State  in  such  cases  exercises  no 
greater  right  than  an  individual  may  exercise  over  the  use  of  bis  own 
property  when  leased  or  loaned  to  others.  The  conditions  upon  which 
the  privilege  shall  be  enjoyed  being  stated  or  implied  in  the  legislation 
authorizing  its  grant,  no  right  is,  of  course,  impaired  by  their  enforce- 
ment. The  recipient  of  the  privilege  in  effect  stipulates  to  comply  with 
the  conditions.  It  matters  not  bow  limited  the  privilege  conferred,  its 
acceptance  implies  an  assent  to  the  regulation  of  its  use  and  the  compen- 
sation for  it.  The  privilege  which  the  hackman  and  drayman  have  to 
the  use  of  stands  on  the  public  streets,  not  allowed  to  the  ordinary  coach- 
man or  laborer  with  teams,  constitutes  a sufficient  warrant  for  the  regula- 
tion of  their  fares.  In  the  case  of  the  warehousemen  of  Chicago,  no  right 
or  privilege  is  conferred  by  the  government  upon  them,  and  hence  no  as- 
sent of  theirs  can  be  alleged  to  justify  any  interference  with  their  charges 
for  the  use  of  their  property. 

“ The  quotations  from  the  writings  of  Sir  Matthew  Hale,  so  far  from 
supporting  the  positions  of  the  court,  do  not  recognize  the  interference 
of  the  government  even  to  the  extent  which  I have  admitted  to  be  legit- 
imate. They  state  merely  that  the  franchise  of  a public  ferry  belongs  to 
the  King,  and  cannot  be  used  by  the  subject  except  by  license  from  him, 
or  prescription  time  out  of  mind  ; and  that  when  the  subject  has  a pub- 
lic wharf  by  license  from  the  King,  or  from  having  dedicated  his  private 
wharf  to  the  public,  as  in  the  case  of  a street  opened  by  him  through  his 
own  land,  he  must  allow  the  use  of  the  wharf  for  reasonable  and  mod- 
erate charges.  Thus,  in  the  first  quotation,  which  is  taken  from  his 
treatise  ‘ De  Jure  Maris,’  Hale  says  that  the  King  has  a ‘right  of  fran- 
chise or  privilege,  that  no  man  may  set  up  a common  ferry  for  all  pas- 
sengers without  a prescription  time  out  of  mind  or  a charter  from  the 
King.  He  may  make  a ferry  for  his  own  use  or  the  use  of  his  family, 
but  not  for  the  common  use  of  all  the  King’s  subjects  passing  that  way; 


* Wilkeson  vs.  Leland,  2 Peters,  657. 


170 


because  it  doth  in  consequent  tend  to  a common  charge,  and  is  become  a 
thing  oi'  public  interest  and  use,  and  every  man  for  his  passage  pays  a 
toll,  which  is  a common  charge,  and  every  ferry  ought  to  he  under  a pub- 
lic regulation,  viz.,  that  it  give  attendance  at  due  times,  keep  a boat  in 
due  order,  and  take  but  reasonable  toll ; for  if  he  fail  in  these  he  is  line- 
able.’  Of  course  one  who  obtains  a license  from  the  King  to  establish  a 
public  ferry  at  which  ‘every  man  for  his  passage  pays  a toll,’  must  take 
it  on  condition  that  he  charge  onlj'  reasonable  toll,  and  indeed  subject  to 
such  regulations  as  the  King  may  prescribe. 

“ In  the  second  quotation,  which  is  taken  from  his  treatise  ‘ De  Porti- 
bus  Maris,’  Hale  says:  ‘ A man,  for  his  own  private  advantage,  may,  in  a 
port  or  town,  set  up  a wharf  or  crane,  and  may  take  what  rates  he  and 
his  customers  can  agree  for  cranage,  wharfage,  housellage,  pesage ; lor 
he  doth  no  more  than  is  lawful  for  any  man  to  do,  viz.,  makes  the 
most  of  his  own.  ...  If  the  King  or  subject  have  a public  wharf, 
unto  which  all  persons  that  come  to  that  port  must  come  and  unlade  or 
lade  their  goods  as  for  the  purpose,  because  they  are  the  wharves  only 
licensed  by  the  King,  ...  or  because  there  is  no  other  wharf  in  that 
port,  as  it  may  fall  out  where  a port  is  newly  erected,  in  that  case  there 
cannot  be  taken  arbitrary  and  excessive  duties  for  cranage,  wharfage, 
pesage,  &c.,  neither  can  they  be  enhanced  to  an  immoderate  rate,  but  the 
duties  must  be  reasonable  and  moderate,  though  settled  by  the  King’s 
license  or  charter.  For  now  the  wharf  and  crane  and  other  conveniences 
are  affected  with  a public  interest,  and  they  cease  to  be  juris  privati  only  ; 
as  if  a man  set  out  a street  in  new  building  on  his  own  land,  it  is  now  no 
longer  bare  private  interest,  but  is  affected  by  the  public  interest.’  The 
purport  of  which  is  that  if  one  have  a public  wharf,  by  license  from  the 
government  or  his  own  dedication,  he  must  exact  only  reasonable  com- 
pensation for  its  use.  By  its  dedication  to  public  use  a wharf  is  as  much 
brought  under  the  common  law  rule  of  subjection  to  reasonable  charges 
as  it  would  be  if  originally  established  or  licensed  by  the  Crown.  All 
property  dedicated  to  public  use  by  an  individual  owner,  as  in  the  case 
of  land  for  a park  or  street,  falls  at  once,  by  force  of  the  dedication,  un- 
der the  law  governing  property  appropriated  by  the  government  for  sim- 
ilar purposes. 

“ l do  not  doubt  the  justice  of  the  encomiums  passed  upgn  Sir  Matthew 
Hale  as  a learned  jurist  of  his  day,  but  I am  unable  to  perceive  the  per- 
tinency of  his  observations  upon  public  ferries  and  public  wharves,  found 
iu  his  treatises  on  ‘The  Rights  of  the  Sea  ’ and  on  ‘The  Ports  of  the  Sea,’ 
to  the  questions  presented  by  the  warehousing  law  of  Illinois  undertak- 
ing to  regulate  the  compensation  receivable  by  the  owners  of  private 
property,  when  that  property  is  used  Hoy  private  purposes. 

“The  principal  authority  cited  in  support  of  the  ruling  of  the  court  is 
that  of  Alnutt  vs.  Inglis,  decided  by  the  King’s  Bench,  and  reported  in 
the  12th  of  East.  But  that  case,  so  far  from  sustaining  the  ruling,  estab- 
lishes, in  my  judgment,  the  doctrine  that  every  one  has  a right  to  charge 


171 


for  his  property,  or  for  its  use,  whatever  he  pleases,  unless  he  enjoys  in 
connection  with  it  some  right  or  privilege  from  the  government  not  ac- 
corded to  others ; and  even  then  it  only  decides  what  is  above  stated  in 
the  quotations  from  Sir  Matthew  Hale,  that  he  must  submit,  so  long  as 
he  retains  the  right  or  privilege,  to  reasonable  rates.  In  that  case  the 
London  Dock  Company,  under  certain  acts  of  Parliament,  possessed  the 
exclusive  right  of  receiving  imported  goods  into  their  warehouses  before 
the  duties  were  paid  ; and  the  question  was  whether  the  company  was 
bound  to  receive  them  for  a reasonable  reward,  or  whether  it  could  arbi- 
trarily fix  its  compensation.  In  deciding  the  case,  the  Chief  Justice, 
Lord  Ellenborougli,  said  : ‘ There  is  no  doubt  that  the  general  principle  is 
favored  both  in  law  and  justice,  that  every  man  may  fix  what  price  he 
pleases  upon  his  own  property,  or  the  use  of  it : but  if,  for  a particular 
purpose,  the  public  have  a right  to  resort  to  his  premises  and  make  use 
of  them,  and  he  have  a monopoly  in  them  for  that  purpose,  if  he  will 
take  the  beuedt  of  that  monopoly,  he  must,  as  an  equivalent,  perform 
the  duty  attached  to  it  on  reasonable  terms.’  And  coming  to  the  con- 
clusion that  the  company's  warehouses  were  invested  with  'the  monopoly 
of  a public  privilege,1  he  held  that  by  law  the  company  must  confine  it- 
self to  take  reasonable  rates  ; and  added  that  if  the  Crown  should  there- 
after think  it  advisable  to  extend  the  privilege  more  generally  to  other 
persons  and  places,  so  that  the  public  would  not  be  restrained  from  exer- 
cising a choice  of  warehouses  for  the  purpose,  the  company  might  be  en- 
franchised from  the  restriction  which  attached  to  a monopoly ; but  so 
long  as  its  warehouses  were  the  only  places  which  could  be  resorted  to 
for  that  purpose,  the  company  was  bound  to  let  the  trade  have  the  use  of 
them  for  a reasonable  hire  and  reward.  The  other  judges  of  the  court 
placed  their  concurrence  in  the  decision  upon  the  ground  that  the  com- 
pany possessed  a legal  monopoly  of  the  business,  having  the  only  ware- 
houses where  goods  imported  could  be  lawfully  received  without  previous 
payment  of  the  duties.  From  this  case  it  appears  that  it  is  only  where 
some  privilege  in  the  bestowal  of  the  government  is  enjoyed  in  connec- 
tion with  the  property,  that  it  is  affected  with  a public  interest  in  any 
proper  sense  of  the  term.  It  is  the  public  privilege  conferred  with  the 
use  of  the  property  which  creates  the  public  interest  in  it. 

“ In  the  case  decided  by  the  Supreme  Court  of  Alabama,  w here  a power 
granted  by  the  city  of  Mobile  to  license  bakers  and  to  regulate  the  weight 
and  price  of  bread,  was  sustained  so  far  as  regulating  the  weight  of  bread 
was  concerned,  no  question  was  made  as  to  the  right  to  regulate  the  price.* 
There  is  no  doubt  of  the  competency  of  the  State  to  prescribe  the  weight 
of  a loaf  of  bread,  as  it  may  declare  what  weight  shall  constitute  a pound 
or  a ton.  But  I deny  the  power  of  any  legislature  under  our  government 
to  fix  the  price  which  one  shall  receive  for  his  property  of  any  kind.  If 
the  power  can  be  exercised  as  to  one  article  it  may  as  to  all  articles,  and 


* 3 Ala.,  137. 


172 


the  prices  of  everything  from  a calico  gown  to  a city  mansion  may  be  the 
subject  of  legislative  direction. 

‘‘Other  instances  of  a similar  character  may  no  doubt  be  cited  of  at- 
tempted legislative  interference  with  the  rights  of  property.  The  act  of 
Congress  of  18:20,  mentioned  by  the  court,  is  one  of  them.  There  Con- 
gress undertook  to  confer  upon  the  city  of  Washington  power  to  regulate 
the  rates  of  wharfage  at  private  wharves,  and  the  fees  for  sweeping  chim- 
neys. Until  some  authoritative  adjudication  is  had  upon  these  and  sim- 
ilar provisions,  I must  adhere,  notwithstanding  the  legislation,  to  my 
opinion  that  those  who  own  property  have  the  right  to  fix  the  compensa- 
tion at  which  theyr  will  allow  its  use,  and  that  those  who  control  services 
have  a right  to  fix  the  compensation  at  which  they  will  be  rendered.  The 
chimney-sweeps  may,  I think,  safely  claim  all  1 he  compensation  which 
they  can  obtain  by  bargain  for  their  work.  In  the  absence  of  any  con- 
tract for  property  or  services  the  law  allows  only  a reasonable  price  or 
compensation,  but  what  is  a reasonable  price  in  any  case  will  depend  upon 
a variety  of  considerations,  and  is  not  a matter  for  legislative  determina- 
tion. 

“ The  practice  of  regulating  by  legislation  the  interest  receivable  for 
the  use  of  money,  when  considered  with  reference  to  its  origin,  is  only  the 
assertion  of  a right  of  the  government  to  control  the  extent  to  which  a 
privilege  granted  by  it  may  be  exercised  and  enjoyed.  By  the  ancient 
common  law  it  was  unlawful  to  take  any  money  for  the  use  of  money; 
all  who  did  so  were  called  usurers,  a term  of  great  reproach,  and  were  ex- 
posed to  the  censure  of  the  Church.  And  if,  after  the  death  of  a person, 
it  was  discovered  that  he  had  been  a usurer  whilst  living,  his  chattels 
were  forfeited  to  the  King,  and  his  lands  escheated  to  the  lord  of  the  fee. 
No  action  could  be  maintained  on  any  promise  to  pay  for  the  use  of  money, 
because  of  the  unlawfulness  of  the  contract.  Whilst  the  common  law 
thus  condemned  all  usury,  Parliament  interfered  and  made  it  lawful  to 
take  a limited  amount  of  interest.  It  was  not  upon  the  theory  that  the 
legislature  could  arbitrarily  fix  the  compensation  which  one  could  receive 
for  the  use  of  property,  which  by  the  general  law  was  the  subject  of  hire 
for  compensation,  that  Parliament  acted,  but  in  order  to  confer  a privi- 
lege which  the  common  law  denied.  The  reasons  which  led  to  this  legis- 
lation originally  have  long  since  ceased  to  exist,  and  if  the  legislation  is 
still  persisted  in,  it  is  because  a long  acquiescence  in  the  exercise  of  a 
power,  especially  when  it  was  rightfully  assumed  in  the  first  instance,  is 
generally  received  as  sufficient  evidence  of  its  continued  lawfulness.* 


*10  Bacon’s  Abridgment,  264.  The  statute  of  13  Elizabeth,  C.  8, 
which  allows  ten  per  cent,  interest,  recites  “ th  it  all  usury  being  forbidden 
by  the  law  of  God  is  sin  and  detestable;”  and  the  statute  of  21  James 
the  First,  reducing  the  rate  to  eight  per  cent.,  provided  that  nothing  in 
the  law  should  be  “ construed  to  allow  the  practice  of  usury  in  point  of 
religion  or  conscience,”  a clause  introduced,  it  is  said,  to  satisfy  the  bish- 
ops, who  would  not  vote  for  the  bill  without  it. 


“There  was  also  recognized  in  England  by  the  ancient  common  law- 
certain  privileges  as  belonging  to  the  lord  of  the  manor,  which  grew  out 
of  the  state  of  the  country,  the  condition  of  the  people,  and  the  relation 
existing  between  him  and  his  tenants  under  the  feudal  system.  Among 
these  was  the  right  of  the  lord  to  compel  all  the  tenants  within  his 
manor  to  grind  their  corn  at  his  mill.  No  one,  therefore,  could  set  up  a 
mill  except  by  his  license  or  by  the  license  of  the  Crow  n,  unless  he 
claimed  the  right  by  prescription,  which  presupposed  a grant  from  the 
lord  or  Crown,  and,  of  course,  with  such  license  went  the  right  to  regu- 
late the  tolls  to  be  received.  Hence  originated  the  doctrine  which  at 
onetime  obtained  generally  in  this  country,  that  there  could  be  no  mill 
to  grind  corn  for  the  public  without  a grant  or  license  from  the  public 
authorities.  It  is  still,  I believe,  asserted  in  some  States.  This  doctrine 
being  recognized,  all  the  rest  followed.  The  right  to  control  the  toll  ac- 
companied the  right  to  control  the  establishment  of  the  mill. 

“ It  requires  no  comment  to  point  out  the  radical  differences  between 
the  cases  of  public  mills  and  interest  on  money  and  that  of  the  warehouses 
in  Chicago.  No  prerogative  or  privilege  of  the  Crown  to  establish  ware- 
houses was  ever  asserted  at  the  common  law.  The  business  of  a ware- 
houseman was  at  common  law  a private  business,  and  is  so  in  its  nature. 
It  has  no  special  privileges  connected  with  it,  nor  did  the  law  ever  extend 
to  it  any  greater  protection  than  it  extended  to  all  other  private  business. 
No  reason  can  be  assigned  to  justify  legislation  interfering  with  the  legit- 
imate profits  of  that  business  that  would  not  equally  justify  an  inter- 
meddling with  the  business  of  every  man  in  the  community,  so  soon  at 
least  as  his  business  became  generally  useful.”* 


The  Relations  between  the  Federal  Government  and 
the  State  Governments. — The  Rights  of  the  States. 
— The  Virginia  Jury  Cases  and  the  Election  Cases 
from  Ohio  and  Maryland. 

The  government  of  the  Union  is  a government  of  dele- 
gated powers.'  It  can  exercise  only  those  powers  and  such 
as  may  be  necessary  and  proper  to  give  them  full  execu- 
tion. All  other  powers  which  are  not  thus  delegated,  and 
which  are  not  prohibited  by  the  Constitution,  are  reserved 
to  the  States  or  to  the  people.  This  is  not  a matter  of  argu- 


* See  a learned  note  by  Prof.  Denslow  upon  the  opinion  of  the  court  in 
the  16th  vol..  new  series,  of  the  American  Law  Register,  p.  539-545. 


174 


ment  and  inference.  It  is  the  express  language  of  the 
tenth  amendment,  which  is  as  follows  : 

“The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people.” 

All  that  there  is  of  “ State  rights,”  properly  understood, 
is  contained  in  this  amendment.  When  reference  is  made 
to  the  authority  and  jurisdiction  of  States,  and  not  merely 
to  their  proprietary  interests,  “ rights”  and  “powers”  are 
synonymous  terms.  The  rights  of  the  States,  or  “ State 
rights,”  as  the  phrase  is,  are  nothing  more  than  the  powers 
of  the  States  reserved  to  them  under  the  Constitution. 

The  government  of  the  Union  is  invested  with  great 
powers,  such  as  are  essential  to  present  the  whole  country 
as  one  nation  in  its  intercourse  with  other  countries, 
whether  in  peace  or  war,  and  such  as  are  essential  to  the 
preservation  of  peace  at  home,  and  to  facilitate  intercourse 
and  commerce  among  its  people.  In  all  its  powers  that 
government  is  supreme,  and  to  their  enforcement  no  im- 
pediment can  be  lawfully  interposed.  ISTo  true  advocate 
for  the  maintenance  of  the  rights  of  the  States  can  ever 
claim  otherwise.  The  Constitution  itself  on  its  face  de- 
clares that  it,  and  laws  made  in  pursuance  thereof,  “ shall 
be  the  supreme  law  of  the  land.” 

But  the  same  supreme  authority  over  matters  delegated 
to  it,  which  the  government  of  the  Union  possesses,  the 
States  retain  over  matters  not  thus  delegated.  Over  such 
matters  the  powers  of  the  States  are  those  of  their  orig- 
inal sovereignty.  It  was  not  for  local  matters,  such  as 
the  management  of  the  police  of  towns  and  cities,  the 
opening  of  highways,  the  care  of  the  sick,  the  education 
of  children,  the  establishment  of  universities,  the  regula- 
tion, transfer,  and  descent  of  property,  and  the  direction  of 
the  local  interests  of  a community,  that  the  government  of 
the  Union  was  created.  It  was  created  for  the  control  of 
matters  of  common  interest  to  all  the  States,  which  they 
could  not  in  their  separate  capacities  adequately  manage. 


175 


The  dual  government  of  our  fathers — that  of  the  gen- 
eral government  and  that  of  the  States — acting  together 
solved  the  problem  of  a free  government  over  a vast  coun- 
try, embracing  different  climates,  furnishing  different 
products,  and  having,  in  different  sections,  people  of  dif- 
ferent habits  and  pursuits.  Each  State  can  have  its  local 
policy  to  suit  its  people,  without  interfering  with  a different 
policy  pursued  by  another  State.  Take,  for  example,  the 
three  States  of  Maine,  Georgia,  and  California.  Maine, 
with  its  cool  climate,  its  mountains  of  timber,  its  water- 
power for  manufacturing  establishments,  and  its  neigh- 
boring fishing-grounds,  may  desire  special  legislation  to 
develop  its  industries  and  promote  its  prosperity.  Georgia, 
with  its  cotton  fields,  its  balmly  air,  and  its  productive  soil, 
may  require  a very  different  system  of  measures  for  which 
the  legislation  of  Maine  would  be  unsuitable.  California, 
with  its  gold  and  silver  mines,  its  seasons  of  rain  and 
drought,  the  latter  requiring  provision  for  irrigation  ; its 
vast  production  of  cereals  and  fruits,  its  position  on  the 
Pacific  Ocean  encouraging  commerce  with  Asia,  may  well 
call  for  other  and  different  legislation.  Under  our  federal 
system  each  of  these  States  can  pursue  its  own  policy 
without  any  jarring  between  them.  The  government  of 
the  Union  is  over  all,  preserving  peace  among  them,  and 
protecting  them  all  from  foreign  aggression  or  violence. 

In  the  argument  of  the  Cruikshank  case  before  the 
Supreme  Court,  one  of  the  counsel  * used  the  following 
language,  which  well  presents  this  subject  : 

“ This  complex  government  was  curiously  contrived  to  give  liberty  and 
safety  to  the  people  of  all  the  States.  It  was  fashioned  by  the  people,  in 
the  name  of  the  people,  and  for  the  people.  Its  aim  was  to  keep  the 
peace  among  the  States  and  to  manage  affairs  of  common  concern,  while 
it  left  to  the  States  the  entire  management  of  their  own  affairs.  Its  found- 
ers were  wise  and  practical  men.  They  knew  what  history  had  taught 
from  the  beginning  of  Greek  civilization,  that  a number  of  small  repub- 
lics would  perish  without  federation,  and  that  federation  would  destroy 
the  small  republics  without  such  a barrier  as  it  was  impossible  to  pass. 


* David  Dudley  Field. 


17(3 


Liberty  and  safety  were  the  ends  to  be  won  by  the  doable  and  complex 
organization ; liberty  from  the  States,  and  safety  from  the  Union,  and 
the  founders  thought  that  they  had  contrived  a scheme  which  would 
make  the  States  and  the  Union  essential  parts  of  a great  whole ; that 
they  had  set  bounds  to  each  which  they  could  not  pass ; iu  short,  that 
they  had  founded  1 liberty  and  union,  one  and  inseparable.’ 

“No  man  in  his  senses  could  have  supposed,  at  the  formation  of  the 
Constitution,  or  can  now  suppose,  that  a consolidated  government,  ex- 
tending over  so  much  territory  and  so  many  people,  can  last  a generation 
without  the  destruction  of  the  States  and  of  republican  government  with 
them.  History  is  a fable,  and  political  philosophy  a delusion,  if  any 
government  other  than  monarchical  can  stretch  itself  over  fifty  degrees 
of  longitude  and  half  as  many  of  latitude,  with  fifty  millions  of  people, 
where  there  are  no  local  governments  capable  of  standing  by  themselves 
and  resisting  all  attempts  to  imperil  their  self-existence  or  impair  their 
authority.  The  moment  it  is  conceded  that  Washington  may,  at  its  dis- 
cretion, regulate  all  the  concerns  of  New  York  and  California,  of  Louisi- 
ana and  Maine;  that  the  autonomy  of  the  States  has  no  defence  stronger 
than  the  self-denial  of  fluctuating  congressional  majorities;  at  that  mo- 
ment the  republic  of  our  fathers  will  have  disappeared,  and  a republic 
in  name,  but  a despotism  in  fact,  will  have  taken  its  place,  to  give  way 
in  another  generation  to  a government  with  another  name,  and  other 
attributes.” 

In  his  dissenting  opinion  in  the  Pensacola  Telegraph 
case  Judge  Field  gave  expression  to  similar  views,  as 
follows: 

“ The  late  war  was  carried  on  at  an  enormous  cost  of  life  and  property 
that  the  Union  might  be  preserved  ; but  unless  the  independence  of  the 
States  within  their  proper  spheres  be  also  preserved  the  Union  is  value- 
less. In  our  form  of  government  the  one  is  as  essential  as  the  other  ; and 
a blow  at  one  strikes  both.  The  geueral  government  was  formed  lor 
national  purposes,  principally  that  we  might  have  within  ourselves  uni- 
formity of  commercial  regulations,  a common  currency,  one  postal  system 
and  that  the  citizens  of  the  several  States  might  have  in  each  equality  of 
right  and  privilege  ; and  that  in  our  foreign  relations  we  might  present 
ourselves  as  one  nation.  But  the  protection  and  enforcement  of  private 
rights  of  both  persons  and  property,  and  the  regulation  of  domestic  af- 
fairs, were  left  chiefly  with  the  States,  and  unless  they  are  allowed  to  re- 
main there  it  will  lie  impossible  for  a country  of  such  vast  dimensions  as 
ours,  with  every  variety  of  soil  and  climate,  creating  different  pursuits 
and  conflicting  interests  in  different  sections,  to  be  kept  together  in 
peace.  As  long  as  the  general  government  confines  itself  to  its  great  but 
limited  sphere,  and  the  States  are  left  to  control  their  domestic  affairs 
and  business,  there  can  be  no  ground  for  public  unrest  and  disturbance. 
Disquiet  can  only  arise  from  the  exercise  of  ungranted  powers.” — (96 
IT.  S.,  23.) 


177 


The  fourteenth  amendment  has  not  changed  this  con- 
trol of  the  States  over  matters  of  local  concern.  It  only 
prohibits  partial  and  discriminating  legislation  by  them, 
requiring  that  all  persons  within  their  jurisdiction  shall 
receive  the  equal  protection  of  the  laws.  It  interferes  with 
the  previous  powers  of  the  States  in  no  other  respect. 

But  by  far  the  most  exhaustive  and  elaborate  consider- 
ation of  the  relations  between  the  general  government 
and  that  of  the  States,  which  has  ever  been  had  in  the 
Supreme  Court,  is  found  in  the  dissenting  opinions  of 
Judge  Field  in  the  recent  jury  cases  from  Virginia,  and 
in  the  election  cases  from  Ohio  and  Maryland. 

There  were  two  jury  cases  ; one  arising  upon  the  in- 
dictment of  a county  judge  for  not  selecting  as  jurors  per- 
sons of  the  colored  race;  and  the  other  upon  the  removal 
of  prisoners  from  a State  court  to  a federal  court  after 
their  conviction  because  persons  of  that  race  were  not 
selected  as  jurors  in  the  State  court. 

The  first  case  arose  as  follows: 

In  Virginia  all  male  citizens  between  the  ages  of  twenty- 
one  and  sixty,  who  are  entitled  to  vote  and  hold  office  un- 
der the  constitution  and  laws  of  the  State,  are  liable,  with 
certain  exceptions,  not  material  to  be  here  mentioned,  to 
serve  as  jurors.  The  judge  of  each  county  or  corporation 
court  is  required  to  prepare  annually  a list  of  such  inhab- 
itants of  the  county  or  corporation,  not  less  than  one  hun- 
dred, nor  exceeding  three  hundred  in  number,  “ as  he 
shall  think  well  qualified  to  serve  as  jurors,  being  persons 
of  sound  judgment  and  free  from  legal  exception.”  The 
name  of  each  person  on  the  list  thus  prepared  is  to  be 
written  on  a separate  ballot  and  placed  in  a box  to  be  kept 
by  the  clerk  of  the  court.  F rom  this  box  the  names  of 
persons  to  he  summoned  as  grand  and  petit  jurors  of  the 
county  are  to  be  drawn. 

The  law,  in  thus  providing  for  the  preparation  of  the 
list  of  persons  from  whom  the  jurors  are  to  be  taken, 
makes  no  discrimination  against  persons  of  the  colored 
12 


178 


race.  The  judge  of  the  county  or  corporation  court  is  re- 
stricted iu  his  action  only  by  the  condition  that  the  per- 
sons selected  shall,  in  his  opinion,  be  “well  qualified  to 
serve  as  jurors,”  be  “ of  sound  judgment,”  and  “ free  from 
legal  exception.”  Whether  they  possess  these  qualifica- 
tions, is  left  to  his  determination. 

In  1878  J.  D.  Coles  was  the  judge  of  the  County  Court 
of  the  County  of  Pittsylvania,  in  Virginia,  and  had  held 
that  office  for  some  years.  It  was  not  pretended  that,  in 
the  discharge  of  his  judicial  duties,  he  had  ever  selected 
as  jurors  persons  who  were  not  qualified  to  serve  in  that 
character,  or  who  were  not  of  sound  judgment,  or  who 
were  not  free  from  legal  exception.  It  was  not  even  sug- 
gested in  argument  that  he  had  not  at  all  times  faithfully 
obeyed  the  law  of  the  State  ; yet  he  was  indicted  in  the 
District  Court  of  the  United  States  for  the  Western  Dis- 
trict of  Virginia  for  having,  on  some  undesignated  day  in 
the  year  1878,  excluded  and  failed  to  select  as  grand  and 
petit  jurors,  citizens  of  the  county,  on  account  of  race, 
color,  and  previous  condition  of  servitude.  The  indict- 
ment did  not  state  who  those  citizens  were,  or  set  forth 
any  particulars  of  the  offence,  but  charged  it  in  the  gen- 
eral words  of  a definition.  The  district  court,  neverthe- 
less, issued  a bench  warrant,  upon  which  the  judge  was 
arrested  and,  refusing  to  give  hail,  he  was  held  in  custody 
to  answer  the  indictment.  He  thereupon  presented  to  the 
Supreme  Court  of  the  United  States  a petition  for  a certi- 
orari to  that  court  to  send  up  the  record  of  its  proceedings 
for  examination,  and  for  a writ  of  habeas  corpus,  alleging 
that  its  action  was  without  jurisdiction,  and  that  his  im- 
prisonment thereunder  was  unlawful,  and  praying  to  be 
released  therefrom. 

The  Commonwealth  of  Virginia  also  presented  a simi- 
lar petition,  declaring  that  she  was  injured  by  being  de- 
prived of  the  services  of  her  judicial  officer,  by  his  un- 
lawful arrest  and  imprisonment. 

The  indictment  was  founded  upon  the  fourth  section  of 


tbs  act  of  Congress  of  March  1st,  1875,  “to  protect  all 
citizens  in  their  civil  and  legal  rights,”  which  declares : 
“ That  no  citizen  possessing  all  other  qualifications,  which 
are  or  may  he  prescribed  by  law,  shall  be  disqualified  for 
service  as  grand  or  petit  juror,  in  any  court  of  the  United 
States,  or  of  any  State,  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude  ; and  any  officer  or  other  per- 
son charged  with  any  duty  in  the  selection  or  summoning 
of  jurors,  who  shall  exclude  or  fail  to  summon  any  citizen 
for  the  cause  aforesaid,  shall,  on  conviction  thereof,  he 
deemed  guilty  of  a misdemeanor,  and  he  fined  not  more 
than  five  thousand  dollars.” 

The  case  was  elaborately  and  ably  argued  by  Judge 
Robertson  and  the  Attorney-General  of  Virginia  for  the 
petitioner,  Coles,  and  the  Commonwealth  ; and  by  the 
Attorney-General  of  the  United  States  and  Judge  Wil- 
oughby  in  opposition. 

The  court  held  the  act  of  Congress  constitutional,  the 
indictment  valid,  and  denied  the  petitions  of  Judge  Coles 
and  the  Commonwealth  of  Virginia.  A very  elaborate 
opinion  on  sustaining  their  action  was  given  by  Judge 
Strong  for  the  majority  of  the  court.  Judges  Clifford  and 
Field  dissented,  Judge  Field  delivering  a dissenting  opin- 
ion. In  that  opinion  he  contended  that  the  district  court 
exceeded  its  jurisdiction  in  issuing  its  process  for  the  arrest 
of  Judge  Coles, on  two  grounds:  1st,  because,  assuming  that 
the  act  of  Congress  of  1875  was  constitutional  and  valid 
legislation,  the  indictment  described  no  offence  under  it, 
but  was  void  on  its  face;  and  2nd,  because  that  act,  in  the 
section  upon  which  the  indictment  was  founded,  so  far' as 
it  related  to  jurors  in  State  courts,  was  unconstitutional 
and  void.  On  the  second  ground  Judge  Field  said  as 
follows  : 

“ Previous  to  the  late  amendments  it  would  not  have  been  contended, 
by  any  one  familiar  with  the  Constitution,  that  Congress  was  vested  with 
any  power  to  exercise  supervision  over  the  conduct  of  State  officers  in 
the  discharge  of  their  duties  under  the  laws  of  the  State,  and  prescribe 
a punishment  for  disregarding  its  directions.  It  would  have  been  con- 


180 


ceded  that  the  selection  of  jurors  was  a subject  exclusively  for  regulation 
by  the  States;  that  it  was  for  them  to  determine  who  should  act  as  jurors 
in  their  courts,  from  what  class  they  should  be  taken,  and  what  qualifi- 
cations they  should  possess ; and  that  their  officers  in  carrying  out  the 
laws  in  this  respect  were  responsible  only  to  them.  The  States  could 
have  abolished  jury  trials  altogether,  and  required  all  controversies  to  be 
submitted  to  the  courts  without  their  intervention.  The  sixth  and  sev- 
enth amendments,  in  which  jury  trials  are  mentioned,  apply  only  to  the 
federal  courts,  as  has  been  repeatedly  adjudged. 

The  government  created  by  the  Constitution  was  not  designed  for  the 
regulation  of  matters  of  purely  local  concern.  The  States  required  no 
aid  from  any  external  authority  to  manage  their  domestic  affairs.  They 
were  fully  competent  to  provide  for  the  due  administration  of  justice 
between  their  own  citizens  in  their  own  courts,  and  they  needed  no  di- 
rections in  that  matter  from  any  other  government,  any  more  than  they 
needed  directions  as  to  their  highways  and  schools,  their  hospitals  and 
charitable  institutions,  their  public  libraries,  or  the  magistrates  they 
should  appoint  for  their  towns  and  counties.  It  was  only  for  matters 
which  concerned  all  the  States,  and  which  could  not  be  managed  by  them 
in  their  independent  capacity,  or  managed  only  with  great  difficulty  and 
embarrassment,  that  a general  and  common  government  was  desired. 
Whilst  they  retained. control  of  local  matters,  it  was  felt  necessary  that 
matters  of  general  and  common  interest,  which  they  could  not  wisely 
and  efficiently  manage,  should  be  entrusted  to  a central  authority.  And 
so  to  the  common  government,  which  grew  out  of  this  prevailing  neces- 
sity, was  granted  exclusive  jurisdiction  over  external  affairs;’ including 
the  great  powers  of  declaring  war,  making  peace,  and  concluding  treaties ; 
but  only  such  powers  of  internal  regulation  were  conferred  as  were  es- 
sential to  the  successful  and  efficient  working  of  the  government  estab- 
lished ; to  facilitate  intercourse  and  commerce  between  the  people  of  the 
different  States,  and  secure  to  them  equality  of  protection  in  the  several 
States. 

“ That  the  central  government  was  created  chiefly  for  matters  of  a 
general  character,  which  concerned  all  the  States  and  their  people,  and 
not  for  matters  of  interior  regulation,  is  shown  as  much  by  the  history  of 
its  formation,  as  by  the  express  language  of  the  Constitution.  The  Union 
preceded  the  Constitution.  As  happily  expressed  by  the  late  Chief  Jus- 
tice, ‘it  began  among  the  Colonies  and  grew  out  of  common  origin,  mu- 
tual sympathies,  kindred  principles,  similar  interests,  and  geographical 
relations.  It  was  confirmed  and  strengthened  by  the  necessities  of  war, 
and  received  definite  form  and  character  and  sanction  from  the  Articles 
of  Confederation.’ — (Texas  vs.  White,  725.)  Those  articles  were  prepared 
by  the  Continental  Congress,  which  was  called  to  provide  measures  for  the 
common  defence  of  the  colonies  against  the  encroachments  of  the  British 
Crown,  and  which,  failing  to  secure  redress,  declared  their  independence. 
Its  members  foresaw  that  when  the  independence  of  the  Colonies  was 


181 


established  and  acknowledged,  their  condition  as  separate  and  independ- 
ent States  would  be  beset  with  dangers  threatening  their  peace  and  safety  ; 
that  disputes  arising  from  conflicting  interests  and  rivalries,  always  inci- 
dent to  neighboring  nations,  would  lead  to  armed  collisions  and  expose 
them  to  re-conquest  by  the  mother  country.  To  provide  against  the 
possibility  of  evils  of  this  kind,  the  Articles  of  Confederation  were  pre- 
pared and  submitted  to  the  legislatures  of  the  several  States,  and  finally 
in  1781  were  adopted.  They  declared  that  the  States  entered  into  a firm 
league  of  friendship  with  each  other  for  their  common  defence;  the  se- 
curity of  their  liberties  and  their  mutual  and  general  welfare;  and  they 
bound  themselves  to  assist  each  other  against  attacks  on  account  of  relig- 
ion, sovereignty,  trade,  or  any  other  pretence.  They  clothed  the  new 
government  created  by  them  with  powers  supposed  to  be  ample  to  secure 
these  ends,  and  declared  that  there  should  be  freedom  of  intercourse  and 
commerce  between  the  inhabitants  of  the  several  States.  They  provided 
for  a general  Congress,  and,  among  other  things,  invested  it  with  the  ex- 
clusive power  of  determining  on  peace  and  war,  except  in  case  of  inva- 
sion of  a State  by  enemies  or  .imminent  danger  of  such  invasion  by  In- 
dians; of  sending  and  receiving  ambassadors,  entering  into  treaties  and 
alliances;  of  regulating  the  alloy  and  value  of  coin  struck  by  the  au- 
thority of  the  States  or  of  the  United  States;  of  fixing  the  standard  of 
weights  and  measures  ; of  regulating  the  trade  and  managing  all  affairs 
with  the  Indians ; and  of  establishing  and  regulating  post-offices  from  one 
State  to  another;  and  they  placed  numerous  restraints  upon  the  States. 
But  by  none  of  the  articles  was  any  interference  authorized  with  the 
purely  internal  affairs  of  the  States,  or  with  any  of  the  instrumentalities 
by  which  the  States  administered  their  governments  and  dispensed  jus- 
tice among  their  people  ; and  they  declared  in  terms  that  each  State  re- 
tained its  sovereignty,  freedom,  and  independence,  and  every  power,  ju- 
risdiction, and  right  which  was  not  by  the  articles  expressly  delegated  to 
the  United  States  in  Congress  assembled. 

“ When  the  government  of  the  Confederation  failed,  chiefly  through  the 
want  of  all  coercive  authority,  to  carry  into  effect  its  measures,  its  power 
being  only  that  of  recommendation  to  the  States,  and  the  present  Con- 
stitution was  adopted,  the  same  general  ends  were  sought  to  be  attained, 
namely,  the  creation  of  a central  government,  which  would  take  exclu- 
sive charge  of  all  our  foreign  relations,  representing  the  people  of  all  the 
States  in  that  respect  as  one  nation,  and  would  at  the  same  time  secure 
at  home  freedom  of  intercourse  bet  ween  the  States,  equality  of  protection 
to  citizens  of  each  State  in  the  several  States,  uniformity  of  commercial 
regulations,  a common  currency,  a standard  of  weights  and  measures,  one 
postal  system,  and  such  other  matters  as  concerned  all  the  States  and 
their  people. 

“ Accordingly,  the  new  government  was  invested  with  powers  adequate 
to  the  accomplishment  of  these  purposes,  with  which  it  could  act  directly 
upon  the  people,  and  not  by  recommendation  to  the  States,  and  enforce 


182 


its  measures  through  tribunals  and  officers  of  its  own  creation.  There 
were  also  restraints  placed  upon  the  action  of  the  States  to  prevent  in- 
terference with  the  authority  of  the  new  government,  and  to  secure  to 
all  persons  protection  against  punishment  by  legislative  decree,  and  en- 
sure the  fulfillment  of  contract  obligations.  But  the  control  of  matters 
of  purely  local  concern,  not  coming  within  the  scope  of  the  powers  granted 
or  the  restraints  mentioned,  was  left,  where  it  had  always  existed,  with 
the  States.  The  new  government  being  one  of  granted  powers,  its  au- 
thority was  limited  by  them  and  such  as  were  necessarily  implied  for 
their  execution.  But  lest  from  a misconception  of  their  extent  these 
powers  might  be  abused,  the  tenth  amendment  was  at  an  early  day 
adopted,  declaring  that  ‘ the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people.’ 

“ Now.  if  we  look  into  the  Constitution  we  shall  not  find  a single  word 
from  its  opening  to  its. concluding  line,  nor  in  any  of  the  amendments  in 
force  before  the  close  of  the  civil  war,  nor,  as  I shall  hereafter  endeavor 
to  show,  in  those  subsequently  adopted,  which  authorizes  any  interference 
by  Congress  with  the  States  in  the  administration  of  their  governments, 
and  the  enforcement  of  their  laws  with  respect  to  any  matter  over  which 
jurisdiction  was  not  surrendered  to  the  United  States.  The  design  of  its 
framers  was  not  to  destroy  the  States,  but  to  form  a more  perfect  union 
between  them,  and  whilst  creating  a central  government  for  certain  great 
purposes,  to  leave  to  the  States  in  all  matters,  the  jurisdiction  of  which 
was  not.  surrendered,  the  functions  essential  to  separate  and  independent 
existence.  Ami  so  the  late  Chief  Justice,  speaking  for  the  court  in  18G9, 
said:  ‘Not  only,  therefore,  can  there  be  no  loss  of  separate  and  independ- 
ent autonomy  to  the  States,  through  their  union  under  the  Constitution, 
hut  it  may  he  not  unreasonably  said  that  the  preservation  of  the  States, 
and  the  maintenance  of  their  governments,  are  as  much  within  the  de- 
sign and  care  of  the  Constitution  as  the  preservation  of  the  Union  and 
the  maintenance  of  the  national  government,’  and  then  he  adds,  in  that 
striking  language  which  gives  to  an  old  truth  new  force  and  significance, 
that ‘the  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union  composed  of  indestructible  States.’ — (Texas  vs.  White,  7 Wall.,  725.) 

“And  Mr.  Justice  Nelson,  also  speaking  for  the  court,  in  1871,  used 
this  language  : ‘The  general  government,  and  the  States,  although  both 
exist  within  the  same  territorial  limits,  are  separate  and  distinct  sov- 
ereignties, acting  separately  and  independently  of  each  other,  within  their 
respective  spheres.  The  former  in  its  appropriate  sphere  is  supreme;  hut 
the  States  within  the  limits  of  their  powers  not  granted,  or,  in  the  lan- 
guage of  the  tenth  amendment,  ‘ reserved,’  are  as  independent  of  the  gen- 
eral government  as  that  government  within  its  sphere  is  independent  of 
the  States.’  And  again  : ‘ We  have  said  that  one  of  the  reserved  powers 
was  that  to  establish  a judicial  department:  it  would  have  been  more  ac- 
curate, and  in  accordance  with  the  existing  state  of  things  at  the  time,  to 


183 


have  said  the  power  to  maintain  a judicial  department.  All  of  the 
thirteen  States  were  in  the  possession  of  this  power  and  had  exercised  it 
at  tlie  adoption  of  the  Constitution  ; and  it  is  not  pretended  that  any 
grant  of  it  to  the  general  government  is  found  in  that  instrument.  It  is, 
therefore,  one  of  the  sovereign  powers  vested  in  the  States  by  their  con- 
stitutions, which  remained  unaltered  and  unimpaired,  and  in  respect  to 
which  the  State  is  as  independent  of  the  general  government  as  that 
government  is  independent  of  the  States.’ — (The  Collector  vs.  Day,  11 
Wall.,  124-6.) 

“The  cases  of  Texas  vs.  White,  and  Collector  vs.  Day,  were  decided 
after  the  thirteenth  and  fourteenth  amendments,  upon  which  it  is  sought 
to  maintain  the  legislation  in  question,  were  adopted  ; and  with  their 
provisions  the  Chief  Justice  and  Mr.  Justice  Nelson,  and  the  court  for 
which  they  spoke,  were  familiar.  Vet  neither  they,  nor  any  other  judge 
of  the  court,  suggested  that  the  doctrines  announced  in  the  opinions, 
from  which  I have  quoted,  were  in  any  respect  modified  or  affected  by 
the  amendments. 

“Nothing,  in  my  judgment,  could  have  a greater  tendency  to  destroy 
the  independence  and  autonomy  of  the  States  ; reduce  them  to  a humili- 
ating and  degrading  dependence  upon  the  central  government ; engender 
constant  irritation  ; and  destroy  that  domestic  tranquillity  which  it  was 
one  of  the  objects  of  the  Constitution  to  insure,  than  the  doctrine  asserted 
in  this  case,  that  Congress  can  exercise  coercive  authority  over  judicial 
officers  of  the  States  in  the  discharge  of  their  duties  under  State  laws. 
It  will  be  only  another  step  in  the  the  same  direction  towards  consolida- 
tion. when  it  assumes  to  exercise  similar  coercive  authority  over  gov- 
ernors and  legislators  of  the  States. 

“ The  Constitution  declares  that  a ‘person  charged  in  any  State  with 
treason,  felony,  or  other  crime,  who  shall  flee  from  justice  and  be  found 
in  another  State,  shall,  on  demand  of  the  executive  authority  of  the 
State  from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime.’  And  yet  in  the  case  of  The  Common- 
wealth of  Kentucky  vs.  Dennison,  where  a fugitive  from  justice  from 
Kentucky  was  demanded  from  the  governor  of  Ohio,  and  on  his  refusal 
application  was  made  to  this  court  for  a mandamus  to  compel  him  to 
perform  his  duty  in  this  respect,  it  was  held  that  there  was  no  clause  or 
provision  in  the  Constitution  which  armed  the  government  of  the  United 
States  with  authority  to  compel  the  executive  of  a State  to  perform  his 
duty,  nor  to  inflict  any  punishment  for  his  neglect  or  refusal.  ‘ Indeed, 
such  a power,’  said  Mr.  Chief  Justice  Taney,  speaking  for  the  whole 
court,  ' would  place  every  State  under  the  control  and  dominion  of  the 
general  government  even  in  the  administration  of  its  internal  concerns 
and  reserved  rights.’ — (24  How..  107.)  And  Mr.  Justice  Nelson,  in  the 
case  of  Collector  vs.  Day,  where  it  was  held  that  it  was  not  competent 
for  Congress  to  impose  a tax  upon  the  salary  of  a judicial  officer  of  a 
State,  said,  that  ‘any  government  whose  means  employed  in  conducting 


184 


its  operations  are  made  subject  to  the  control  of  another  and  distinct  gov- 
ernment, can  exist  only  at  the  mercy  of  that  government-.’  I could  add 
to  these  authorities,  if  anything  more  were  required,  that  all  the  re- 
corded utterances  of  the  statesmen  who  participated  in  framing  the  Con- 
stitution and  urging  its  adoption,  and  of  the  publicists  and  jurists  who 
have  since  studied  its  language  and  aided  in  the  enforcement  of  its  pro- 
visions, are  inconsistent  with  the  pretension  advanced  in  this  case  by  the 
counsel  of  the  government. 

“ The  duties  of  the  county  judge  in  the  selection  of  jurors  were  judi- 
cial in  their  nature.  They  involved  the  exercise  of  discretion  and  judg- 
ment. He  was  to  determine  who  were  qualified  to  serve  in  that  charac- 
ter, and  for  that  purpose  whether  they  possessed  sound  judgment  and 
were  free  from  legal  exceptions.  The  law  under  which  he  acted  had  been 
in  force  for  many  years,  and  had  been  always  considered  by  the  judicial 
authorities  of  Virginia  to  be  in  conformity  with  its  constitution,  which 
inhibits  the  legislature  from  requiring  of  its  judges  any  other  than  judi- 
cial duties.  A test  as  to  the  character  of  an  act  is  found  in  the  power  of 
a writ  of  mandamus  to  enforce  its  performance  in  a particular  way.  If 
the  act  be  a judicial  one,  the  writ-  can  only  require  the  judge  to  proceed 
in  the  discharge  of  his  duty  with  reference  to  it;  the  manner  of  per- 
formance cannot  be  dictated.  Here  the  writ  could  not  command  the 
county  judge  to  select  as  jurors  any  particular  persons,  black  or  white, 
but  only  to  proceed  and  select  such  as  are  qualified,  its  command  in  that 
respect  being  subject  to  the  limitation  incident  to  all  commands  of  such 
writs  upon  judicial  officers  touching  judicial  acts. 

“The  thirteenth  and  fourteenth  amendments  are  relied  upon,  as  al- 
ready stated,  to  support  the  legislation  in  question.  The  thirteenth 
amendment  declares  ‘That  neither  slavery  nor  involuntary  servitude, 
except  as  a punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction.’  The  fourteenth  amendment,  in  its  first  section, 
which  is  the  only  one  having  any  bearing  upon  the  questions  involved  in 
this  case,  declares  that  ‘AH  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of  cit- 
izens of  the  United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws.’  The  fif- 
teenth amendment,  which  declares  that  ‘the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or  previous  condition  of 
servitude,’  is  not  material  to  the  question  before  us,  except  as  showing 
that  it  was  only  with  respect  to  the  suffrage  that  an  interdict  was  in 
terms  placed  against  legislation  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Equality  in  their  civil  rights  was  in  other  ways 


185 


secured  to  persons  of  the  colored  race  ; and  the  ballot  being  assured  to 
them,  an  effectual  means  against  unjust  legislation  was  placed  in  their 
hands.  To  each  of  these  amendments  a clause  is  added  authorizing  Con- 
gress to  enforce  its  provisions  by  ‘appropriate  legislation.’ 

“The  history  of  the  amendments  is  fresh  in  the  recollection  of  all  of 
us.  They  grew  out  of  the  late  civil  war  and  the  events  which  followed 
it.  They  were  primarily  designed  to  give  freedom  to  persons  of  the  Afri- 
can race,  prevent  their  future  enslavement,  make  them  citizens,  prevent 
discriminating  State  legislation  against  their  rights  as  freemen,  and  se- 
cure to  them  the  ballot.  The  generality  of  the  language  used  necessa- 
rily extends  some  of  their  provisions  to  all  persons  of  every  race  and 
color:  but  in  construing  the  amendments  and  giving  effect  to  them,  the 
occasion  of  their  adoption  and  the  purposes  they  were  designed  to  attain 
should  be  always  borne  in  mind.  Nor  should  it  be  forgotten  that  they 
are  additions  to  the  previous  amendments,  and  are  to  be  construed  in  con- 
nection with  them  and  the  original  Constitution  as  one  instrument. 
They  do  not,  in  terms,  contravene  or  repeal  anything  which  previously 
existed  in  the  Constitution  and  those  amendments.  Aside  from  the  ex- 
tinction of  slavery,  and  the  declaration  of  citizenship,  their  provisions  are 
merely  prohibitory  upon  the  States;  and  there  is  nothing  in  their  lan- 
guage or  purpose  which  indicates  that  they  are  to  be  construed  or  en- 
forced in  any  way  different  from  that  adopted  with  reference  to  previous 
restraints  upon  the  States.  The  provision  authorizing  Congress  to  enforce 
them  by  appropriate  legislation  does  not  enlarge  their  scope,  nor  confer 
any  authority  which  would  not  have  existed  independently  of  it.  No 
legislation  would  be  appropriate  which  should  contravene  the  express 
prohibitions  upon  Congress  previously  existing,  as,  for  instance,  that  it 
should  not  pass  a bill  of  attainder  or  an  ex  post  facto  law.  Nor  would 
legislation  be  appropriate  which  should  conflict  with  the  implied  prohi- 
bitions upon  Congress.  They  are  as  obligatory  as  the  express  prohibi- 
tions. The  Constitution,  as  already  stated,  contemplates  the  existence 
and  independence  of  the  States  in  all  their  reserved  powers.  If  the  States 
were  destroyed  there  could  of  course  be  no  United  States.  In  the  lan- 
guage of  this  court,  in  Collector  vs.  Day,  ‘without  them  the  general  gov- 
ernment itself  would  disappear  from  the  family  of  nations.’  Legislation 
could  not,  therefore,  be  appropriate  which,  under  pretence  of  prohibiting 
a State  from  doing  certain  things,  should  tend  to  destroy  it,  or  any  of  its 
essential  attributes.  To  every  State,  as  understood  in  the  American  sense, 
there  must  be,  with  reference  to  the  subjects  over  which  it  has  jurisdic- 
tion, absolute  freedom  from  all  external  interference  in  the  exercise  of  its 
legislative,  judicial,  and  executive  authority.  Congress  could  not  under- 
take to  prescribe  the  duties  of  a State  legislature  and  the  rules  it  should 
follow,  and  the  motives  by  which  it  should  be  governed,  and  authorize 
criminal  prosecutions  against  the  members  if  its  directions  were  disre- 
garded; forthe  independence  of  the  legislature  is  essential  to  the  inde- 
pendence and  autonomy  of  the  State.  Congress  could  not  lay  down  rules 


186 


for  the  guidance  of  the  State  judiciary,  and  prescribe  to  it  the  law  and 
the  motives  by  which  it  should  be  controlled,  and  if  these  were  disre- 
garded, direct  criminal  proceedings  against  its  members  ; because  a judi- 
ciary independent  of  external  authority  is  essential  to  the  independence 
ot  the  State,  and,  also,  I may  add,  to  a just  and  efficient  administration 
of  justice  in  her  courts.  Congress  could  not  dictate  to  the  executive  of 
a State  the  bills  lie  might  approve,  the  pardons  and  reprieves  he  might 
grant,  or  the  manner  in  which  he  might  discharge  the  functions  of  his 
office,  and  assume  to  punish  him  if  its  dictates  were  disregarded,  because 
his  independence,  within  the  reserved  powers,  is  essential  to  that  of  the 
State.  Indeed,  the  independence  of  a State  consists  in  the  independence 
of  its  legislative,  executive,  and  judicial  officers,  through  whom  alone  it 
acts.  If  this  were  not  so,  a State  would  cease  to  be  a self-existing  and  an 
indestructible  member  of  the  Union,  and  would  be  brought  to  the  level 
of  a dependent  municipal  corporation,  existing  only  with  such  powers  as 
Congress  might  prescribe. 

“I  caunot  think  1 am  mistaken  in  saying  that  a change  so  radical  in 
the  relation  between  the  federal  and  State  authorities,  as  would  justify 
legislation  interfering  with  the  independent  action  of  the  different  de- 
partments of  the  state  governments,  iu  all  matters  over  which  the  States 
retain  jurisdiction,  was  never  contemplated  by  the  recent  amendments. 
The  people  in  adopting  them  did  not  suppose  they  were  altering  the 
fundamental  theory  of  their  dual  system  of  governments.  The  discus- 
sions attending  their  consideration  in  Congress,  and  before  the  people, 
when  presented  to  the  legislatures  of  the  States  for  adoption,  can  be  suc- 
cessfully appealed  to  in  support  of  this  assertion.  The  Union  was  pre- 
served at  a fearful  cost  of  life  and  property.  The  institution  of  slavery 
in  a portion  of  the  country  was  the  cause  of  constant  irritation  and 
crimination  between  the  people  of  the  Suites  where  it  existed  and  those 
of  the  free  States,  which  finally  led  to  a rupture  between  them  and  to 
the  civil  war.  As  the  war  progressed  its  sacrifices  and  burdens  filled  the 
people  of  the  loyal  States  with  a determination,  that  not  only  should  the 
Union  be  preserved,  but  that  the  institution,  which,  in  their  judgment, 
had  threatened  its  dissolution,  should  be  abolished.  The  emancipation 
proclamation  of  President  Lincoln  expressed  this  determination,  though 
placed  on  the  ground  of  military  necessity.  The  thirteenth  amend- 
ment carried  it  into  the  organic  law.  That  amendment  prohibits 
slavery  and  involuntary  servitude,  except  for  crime,  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  Its  language  is  uot  re- 
stricted to  the  slavery  of  any  particular  class.  It  applies  to  all  men  ; and 
embraces  in  its  comprehensive  language  not  merely  that  form  of  slavery 
which  consists  in  the  denial  of  personal  rights  to  the  slave,  and  subjects 
him  to  the  condition  of  a chattel,  but  also  serfage,  vassalage,  peonage, 
villanage,  and  every  other  form  of  compulsory  service  for  the  benefit, 
pleasure,  or  caprice,  of  others.  It  was  intended  to  render  every  one 
within  the  domain  of  the  Republic  a freeman,  with  the  right  to  follow  the 


187 


ordinary  pursuits  of  life  without  other  restraints  than  such  as  are  applied 
to  all  others,  and  to  enjoy  equally  with  them  the  earnings  of  his  labor. 
But  it  confers  no  political  rights ; it  leaves  the  States  free,  as  before  its 
adoption,  to  determine  who  shall  hold  their  offices  and  participate  in  the 
administration  of  their  laws.  A similar  prohibition  of  slavery  and  in- 
voluntary servitude  was  iu  the  constitution  of  several  States  previous  to 
its  adoption  by  the  United  States;  and  it  was  never  held  to  confer  any 
political  rights. 

"On  the  eighteenth  of  December,  1865,  this  amendment  was  ratified, 
that  is,  the  official  proclamation  of  its  ratification  was  then  made  ; and 
iu  April  of  the  following  year  the  civil  rights  act  was  passed.  Its  first 
section  declares  that  all  persons  born  in  the  United  States,  and  not  sub- 
*.ject  to  any  foreign  power,  excluding  Indians  not  taxed,  are  ‘citizens  of 
the  United  States,’  and  that  ‘such  citizens,  of  every  race  and  color,  with- 
out regard  to  any  previous  condition  of  slavery  or  involuntary  servitude, 
except  as  a punishment  for  crime,  of  which  the  party  shall  have  been 
duly  convicted,  shall  have  the  same  right  in  every  State  and  territory  in 
the  United  States,  to  make  and  enforce  contracts,  to  sue,  be  parties  and 
give  evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and  convey  real  and 
personal  property,  and]  to  lull  and  equal  benefit  of  all  laws  and  proceed- 
ings for  the  security  of  person  and  property  as  is  enjoyed  by  white  per- 
sons.' This  legislation  was  intended  to  secure  to  all  persons  in  the  United 
States  practical  freedom.  But  its  validity  was  questioned  in  many  quarters 
enlitled  to  consideration,  and  some  of  its  provisions  not  long  afterwards 
were  declared  by  State  courts  to  be  beyond  the  constitutional  authority 
of  Congress. — (Bowlin  vs.  Commonwealth,  2 Bush,  5.)  There  were  also 
complaints  made  that  notwithstanding  the  amendment  abolishing  slav- 
ery and  involuntary  servitude,  except  for  crime,  the  freedmen  were,  by 
legislation  in  some  of  the  Southern  States,  subjected  to  such  burdensome 
disabilities  in  the  acquisition  and  enjoyment  of  property,  and  the  pursuit 
of  happiness,  as  to  render  their  freedom  of  little  value. — (Slaughter-House 
Cases,  1(5  Wall.,  70.)  There  were,  besides,  complaints  of  the  existence,  in 
those  sections,  of  a feeling  of  dislike  towards  citizens  of  the  North  seek- 
ing residence  there,  and  towards  such  of  their  own  citizens  as  had  ad- 
hered to  the  national  government  during  the  war,  which  could  not  fail 
to  find  expression  in  hostile  and  discriminating  legislation.  It  is  imma- 
terial whether  these  complaints  were  justified  or  not ; they  were  believed 
by  many  persons  to  be  well-founded.  To  remove  the  cause  of  them  ; to 
obviate  objections  to  the  validity  of  legislation  similar  to  that  contained 
in  the  first  section  of  the  civil  rights  act;  to  prevent  the  possibility  of 
hostile  and  discriminating  legislation  in  future  by  a State  against  any  cit- 
izen of  the  United  States,  and  the  enforcement  of  any  such  legislation 
already  had;  and  to  secure  to  all  persons  within  the  jurisdiction  of  the 
States  the  equal  protection  of  the  laws,  the  first  section  of  the  fourteenth 
amendment  was  adopted.  Its  first  clause  declared  who  are  citizens  of 
the  United  States  and  of  the  States.  It  thus  removed  from  discussion 


188 


the  question,  which  hstd  previously  been  debated,  and  though  decided, 
not  settled,  by  the  judgment  in  the  Dred  Scott  case,  whether  descendants 
of  persons  brought  to  this  country  and  sold  as  slaves  were  citizens  within 
the  meaning  of  the  Constitution.  It  also  recognized,  if  it  did  not  create, 
a national  citizenship,  as  contradistinguished  from  that  of  the  States. 
But  the  privilege  or  the  duty,  whichever  it  may  be  called,  of  acting  as  a 
juror  in  the  courts  of  the  country,  is  not  an  incident  of  citizenship. 
Women  are  citizens;  so  are  the  aged  above  sixty,  and  children  in  their 
minority  ; yet  they  are  not  allowed  in  Virginia  to  act  as  jurors.  Though 
some  of  these  are  in  all  respects  qualified  for  such  service,  no  one  will  pre- 
tend that  their  exclusion  by  law  from  the  jury  list  impairs  their  rights  as 
citizens. 

“ The  second  clause  of  the  lirst  section  of  the  amendment  declares  that 
‘no  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States.’  In  the  Slaughter- 
House  cases,  it  was  held  by  a majority  of  the  court  that  this  clause  had 
reference  only  to  privileges  and  immunities  of  citizens  of  the  United 
States,  as  distinguished  from  those  of  citizens  of  the  States,  and,  there- 
fore, did  not  apply  to  those  fundamental  civil  rights  which  belong  to  citi- 
zens of  all  free  governments,  such  as  the  right  to  acquire  and  enjoy  prop- 
erty and  pursue  happiness,  subject  only  to  such  just  restraints  as  might 
be  prescribed  for  the  general  good.  If  this  construction  be  correct  there 
can  be  no  pretence  that  the  privilege  or  duty  of  acting  as  a juror  in  a 
State  court  is  within  the  inhibition  of  the  clause.  Nor  could  it  be  within 
that  inhibition  if  a broader  construction  were  given  to  the  clause,  and  it 
should  he  held,  as  contended  by  the  minority  of  the  court  in  the  Slaugh- 
ter-House cases,  that  it  prohibits  the  denial  or  abridgment  by  any  State 
of  those  fundamental  privileges  and  immunities  which  of  right  belong  to 
citizens  of  all  free  governments;  and  with  which  the  Declaration  of  In- 
dependence proclaimed  that  all  men  were  endowed  by  their  Creator,  and 
to  secure  which  governments  were  instituted  among  men.  These  funda- 
mental rights  were  secured,  previous  to  the  amendment,  to  citizens  of 
each  State  in  the  other  States,  by  the  second  section  of  the  fourth  article 
of  the  Constitution,  which  declares  that  ‘ the  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  in  the  several 
States.’  Among  those  privileges  and  immunities,  it  was  never  contended 
that  jury  duty  or  jury  service  was  included. 

“ The  third  clause  in  the  first  section  of  the  amendment  declares  that 
no  State  ‘shall  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law.’  It  will  not  be  contended  that  this  clause  confers 
upon  the  citizen  any  right  to  serve  as  a juror  in  the  State  courts.  It 
exists  in  the  constitutions  of  nearly  all  the  States,  and  is  only  an  addi- 
tional security  against  arbitrary  deprivation  of  life  and  liberty,  and  arbi- 
trary spoliation  of  property.  It  means  that  neither  can  be  taken,  or  the 
enjoyment  thereof  impaired,  except  in  the  course  of  the  regular  admin- 
istration of  the  law  in  the  established  tribunals.  The  existence  of  this 


180 


clause  in  the  amendment  is  to  me  a persuasive  argument  that  those  who 
framed  it.  and  the  legislatures  of  the  States  which  adopted  it,  never  con- 
templated that  the  prohibition  was  to  be.  enforced  in  any  other  way  than 
through  the  judicial  tribunals,  as  previous  prohibitions  upon  the  States 
had  always  been  enforced.  If  Congress  could,  as  an  appropriate  means 
to  enforce  the  prohibition,  prescribe  criminal  prosecutions  for  its  infrac- 
tion against  legislators,  judges,  and  other  officers  of  the  States,  it  would 
be  authorized  to  frame  a vast  portion  of  their  laws,  for  there  are  few  sub- 
jects upon  which  legislation  can  be  had  besides  life,  liberty,  and  property. 
In  determining  what  constitutes  a deprivation  of  property,  it  might  pre- 
scribe the  conditions  upon  which  property  shall  be  acquired  and  held  ; 
and  declare  as  to  what  subjects  property  rights  shall  exist.  In  determin- 
ing what  constitutes  deprivation  of  liberty,  it  might  prescribe  in  what 
way  and  by  what  means  the  liberty  of  the  citizen  shall  be  deemed  pro- 
tected. In  prescribing  punishment  for  deprivation  ot.  life,  it  might  pre- 
scribe a code  of  criminal  procedure.  All  this  and  more  might  be  done  if 
it  ouce  be  admitted,  as  the  court  asserts  in  this  ease,  that  Congress  can 
authorize  a criminal  prosecution  for  the  infraction  of  the  prohibitions. 
It  cannot  prescribe  punishment  without  defining  crime,  and,  therefore, 
must  give  expression  to  its  own  views  as  to  what  constitutes  protection 
to  life,  liberty,  and  property. 

" The  fourth  clause  in  the  first  section  of  the  amendment  declares  that 
no  State  shall  ‘deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws.’  Upon  this  clause  the  counsel  of  the  district  judge 
chiefly  rely  to  sustain  the  validity  of  the  legislation  in  question.  But 
the  universality  of  the  protection  secured  necessarily  renders  their  posi- 
tion untenable.  All  persons  within  the  jurisdiction  of  the  State,  whether 
permanent  residents  or  temporary  sojourners,  whether  old  or  young, 
male  or  female,  are  to  be  equally  protected.  Yet  no  one  will  contend 
that  equal  protection  to  women,  to  children,  to  the  aged,  to  aliens,  can 
only  be  secured  by  allowing  persons  of  the  class  to  which  they  belong  to 
act  as  jurors  in  cases  affecting  their  interests.  The  equality  of  protection 
intended  does  not  require  that  all  persons  shall  be  permitted  to  partici- 
pate in  the  government  of  the  State  and  the  administration  of  its  laws, 
to  hold  its  offices,  or  be  clothed  with  any  public  trusts.  As  already  said, 
the  universality  of  the  protection  assured  repels  any  such  conclusion. 

“ The  equality  of  the  protection  secured  extends  only  to  civil  rights  as 
distinguished  from  those  which  are  political,  or  arise  from  the  form  of  the 
government  and  its  mode  of  administration.  And  yet  the  reach  and 
influence  of  the  amendment  are  immense.  It  opens  the  courts  of  the 
country  to  every  one,  on  the  same  terms,  for  the  security  of  his  person  and 
property,  the  prevention  and  redress  of  wrongs,  and  the  enforcement  of 
contracts : it  assures  to  every  one  the  same  rules  of  evidence  and  modes 
of  procedure ; it  allows  no  impediments  to  the  acquisition  of  property 
and  the  pursuit  of  happiness,  to  which  all  are  not  subjected  ; it  suffers  no 
other  or  greater  burdens  or  charges  to  be  laid  upon  one  than  such  as  are 


190 


equally  borne  by  others;  and  in  the  administration  ol’  criminal  justice  it 
permits  no  different  or  greater  punishment  to  be  imposed  upon  one  than 
such  as  is  prescribed  to  all  for  like  offences.  It  secures  to  all  persons  their 
civil  rights  upon  the  same  terms  ; but  it  leaves  political  rights,  or  such  ad 
arise  from  the  form  of  government  and  its  administration,  as  they  stood 
previous  to  its  adoption.  It  has  no  more  reference  to  them  than  it  has  to 
social  rights  and  duties,  which  do  not  rest  upon  any  positive  law,  though 
they  are  more  potential  in  controlling  the  intercourse  of  individuals.  In 
the  consideration  of  questions  growing  out  of  these  amendments  much 
confusion  has  arisen  from  a failure  to  distinguish  between  the  civil  and 
the  political  rights  of  citizens.  Civil  rights  are  absolute  and  personal. 
Political  rights  on  the  other  hand  are  conditioned  and  dependent  upon 
the  discretion  of  the  elective  or  appointing  power,  whether  that  be  the 
people  acting  through  the  ballot,  or  one  of  the  departments  of  their  gov- 
ernment. The  civjl  rights  of  the  individual  are  never  to  be  withheld, 
and  may  be  always  judicially  enforced.  The  political  rights  which  he 
may  enjoy,  such  as  holding  office  and  discharging  a public  trust,  are  qual- 
ified because  their  possession  depends  on  his  fitness,  to  be  adjudged  by 
those  whom  society  has  clothed  with  the  elective  authority.  The  thir- 
teenth and  fourteenth  amendments  wrere  designed  to  secure  the  civil 
rights  of  all  persons  of  every  race,  color,  and  condition,  but  they  left  to 
the  States  to  determine  to  whom  the  possession  of  political  power  should 
be  entrusted.  This  is  manifest  from  the  fact  that  when  it  was  desired  to 
confer  political  power  upon  the  newly-made  citizens  of  the  States,  as  was 
done  by  inhibiting  the  denial  to  them  of  the  suffrage  on  account  of  race, 
color,  or  previous  condition  of  servitude,  a new  amendment  was  required. 
■ “ The  doctrine  of  the  district  judge,  forwhieh  the  counsel  contend,  would 
lead  to  some  singular  results.  If,  when  a colored  person  is  accused  of  a 
criminal  offence,  the  presence  of  persons  of  his  race  on  the  jury  by  which 
he  is  to  be  tried  is  essential  to  secure  to  him  the  equal  protection  of  the 
laws,  it  would  seem  that  the  presence  of  such  persons  on  the  bench  would 
be  equally  essential,  if  the  court  should  consist  of  more  than  one  judge, 
as  in  many  cases  it  may  ; and  if  it  should  consist  of  a single  judge,  that 
such  protection  would  be  impossible.  A similar  objection  might  be  raised 
to  the  composition  of  any  appellate  court  to  which  the  case,  after  ver- 
dict, might  be  carried. 

“ The  position  that  in  cases  where  the  rights  of  colored  persons  are  con- 
cerned, justice  will  not  be  done  to  them  unless  they  have  a mixed  jury, 
is  founded  upon  the  notion  that  in  such  cases  white  persons  will  not  Ire 
fair  and  honest  jurors.  If  this  position  be  correct  there  ought  not  to  be. 
any  white  persons  on  the  jury  where  the  interests  of  colored  persons  only 
are  involved.  That  jury  would  not  be  an  honest  or  fair  one,  of  which 
any  of  its  members  should  be  governed  in  his  judgment  by  other  consid- 
erations than  the  law  and  the  evidence ; and  that  decision  would  hardly  be 
considered  just  which  should  be  reached  by  a sort  of  compromise,  in 
which  the  prejudices  of  one  race  were  set  off  against  the.  prejudices  of  the 
other.  To  be  consistent,  those  who  hold  this  notion  should  contend  that 


191 


in  cases  affecting  members  of  the  colored  race  only  the  juries  should  be 
composed  entirely  of  colored  persons,  and  that  the  presiding  judge  should 
be  of  the  same  race.  To  this  result  the  doctrine  asserted  by  the  District 
Court  logically  leads.  The  jury  cle  medietate  linguae,  anciently  allowed 
in  England  for  the  trial  of  an  alien,  was  expressly  authorized  by  statute 
probably  as  much  because  of  the  difference  of  language  and  customs  be- 
tween him  and  Englishmen,  and  the  greater  probability  of  bis  defence 
being  more  fully  understood,  as  because  it  would  be  heard  in  a more 
friendly  spirit  by  jurors  of  his  own  country  and  language. 

“ If  these  views  as  to  the  purport  and  meaning  of  the  thirteenth  and 
fourteenth  amendments  of  the  Constitution  be  correct,  there  is  no  warrant 
for  the  act  of  Congress  under  which  the  indictment  in  this  case  was  found, 
and  the  arrest  and  imprisonment  of  the  petitioner  were  unlawful,  and  his 
release  should  be  ordered. 

" The  case  is  one  which  should  not  be  delayed  for  the  slow  process  of  a 
trial  in  the  court  below,  and  a subsequent  appeal,  in  case  of  convic- 
tion. to  this  court  to  be  heard  years  hence.  The  Commonwealth  of  Vir- 
ginia has  represented  to  us  that  the  services  of  her  judicial  officer  are 
needed  in  her  courts  for  the  administration  of  justice  between  her  citi- 
zens, and  she  asks  that  the  highest  tribunal  of  the  Union  will  release  him 
from  his  unlawful  arrest,  in  order  that  he  may  perform  the  duties  of  his 
office.  Those  who  regard  the  independence  of  the  States  in  all  their  re- 
served powers — and  this  includes  the  independence  of  their  legislative, 
judicial,  and  executive  departments — as  essential  to  the  successful  mainte- 
nance of  our  form  of  government,  cannot  fail  to  view  with  the  gravest 
apprehension  for  the  future,  the  indictment,  in  a court  of  the  United 
States,  of  a judicial  officer  of  a State  for  the  manner  in  which  he  has  dis- 
charged his  duties  under  her  laws,  and  of  which  she  makes  no  complaint. 
The  proceeding  is  a gross  offence  to  the  State  ; it  is  an  attack  upon  her 
sovereignty  in  matters  over  which  she  has  never  surrendered  her  juris- 
diction. The  doctrine  which  sustains  it,  carried  to  its  logical  results,  would 
degrade  and  sink  her  to  the  level  of  a mere  local  municipal  corporation  ; 
for  if  Congress  can  render  an  officer  of  a State  criminally  liable  for  the 
manner  in  which  he  discharges  his  duties  under  her  laws,  it  can  prescribe 
the  nature  and  extent  of  the  penalty  to  which  he  shall  be  subjected  on 
conviction  ; it  may  imprison  him  for  life  or  punish  him  by  removal  from 
office.  And  if  it  can  make  the  exclusion  of  persons  from  jury  service  on 
account  of  race  or  color  a criminal  offence,  it  can  make  their  exclusion 
from  office  on  that  account  also  criminal;  and,  adopting  the  doctrine  of 
the  district  judge  in  this  case,  the  failure  to  appoint  them  to  office  will 
be  presumptive  evidence  of  their  exclusion  on  that  ground.  To  such  a 
result  are  we  logically  led.  The  legislation  of  Congress  is  founded,  and 
is  sustained  by  this  court,  as  it  seems  to  me,  upon  a theory  as  to  what 
constitutes  the  equal  protection  of  the  laws,  which  is  purely  speculative, 
not  warranted  by  any  experience  of  the  country,  and  not  in  accordance 
with  the  understanding  of  the  people  as  to  the  meaning  of  those  terms 
since  the  organization  of  the  government,” 


102 


The  decision  of  the  court  in  this  case  attracted  great 
attention  throughout  the  country,  for  the  views  expressed 
seemed  to  indicate  a wide  departure  from  previous  doc- 
trines, and  to  recognize  in  the  general  government  a 
power  over  the  States  never  before  supposed  to  exist. 
All  the  principal  journals  contained  comments  upon  it. 
The  following  extracts  from  a leading  Republican  paper 
of  California  express  with  much  force  the  sentiments  of 
thoughtful  men  of  all  parties  : 

“THE  LAST  STEP  TOWARDS  CENTRALIZATION. 

From  the  Record-Union  of  March  20th,  1SS0. 

“In  the  interpretation  of  the  last  judicial  advance  towards  govern- 
mental centralization,  the  public  judgment  is  warped  by  partisan  preju- 
dice, and  Republicans  are  led  to  believe  that  they  have  witnessed  a fresh 
triumph  for  the  principles  of  their  party,  when  in  reality  they  are  un- 
wittingly consenting  to  the  removal  of  all  those  checks  to  centralization 
which  afford  the  strongest  guarantees  of  popular  liberty.  The  decision 
of  the  United  States  Supreme  Court,  in  the  matter  of  J.  D.  Coles  and  the 
Commonwealth  of  Virginia,  petioners  for  the  writ  of  habeas  corpus,  marks 
a decided  forward  step  in  that  modern  policy  of  governmental  metamor- 
phosis which  is  gradually  withdrawing  from  and  denying  to  tlie  States 
those  elemeuts  of  independent  sovereignty  and  local  self-government 
never  surrendered  by  them  to  the  federal  government.  So  insidiously  is 
this  transformation  proceeding,  that  it  promises  to  have  extended  beyond 
the  possibility  of  check  or  retracement  before  the  nation  has  clearly 
realized  what  it  is  that  is  being  done.  Twenty  years  ago  the  perception 
of  the  reserved  rights  of  the  States  was  so  much  keener  than  now  that 
such  a decision  as  this  would  certainly  have  created  a profound  sensation, 
and  as  certainly  have  provoked  the  most  energetic  and  earnest  censure, 
whereas  to-day  it  passes  with  no  more  notice  than  consists  in  the  cus- 
tomary indorsement  held  indispensable  by  every  party  serf  when  a doc- 
trine supposed  to  be  partisan  in  its  character  is  promulgated.  In  fact 
the  concernment  here  is  not  partisan,  but  national.  Because  the  Com- 
monwealth of  Virginia  is  a party  to  the  proceeding,  and  the  political 
rights  of  negroes  are  in  question,  it  has  been  hastily  concluded  that  the 
whole  matter  was  one  of  reconstruction,  and  that  inasmuch  as  the  court 
had  ruled  against  the  State,  another  defeat  for  the  ‘ Secessionists  ’ was  to 
be  scored.  It  is  necessary  to  point  out  that,  though  in  truth  reconstruc- 
tion is  here  dealt  with,  it  is  not  alone  the  technical  reconstruction  of  the 
Southern  States,  but  the  absolute  reconstruction  of  the  Union  between 
the  States  that  is  now  in  course  of  being  arranged. 

“ It  is  neither  necessary  nor  desirable  to  import  any  political  bias  into 
the  consideration  of  this  subject.  It  transcends  all  party  issues,  for  it  in- 


volves  the  question  ol'  the  future  of  the  whole  Republic.  It  is  here  de- 
liberately set  forth  by  the  highest  judicial  authority  that  the  constitu- 
tional amendments  give  the  federal  government  powers  over  the  States 
which  are  incompatible  with  the  maintenance  of  any  independence  what- 
ever, and  which  not  only  facilitate  but  hasten  the  transformation  of  the 
government  from  a federation  of  sovereign  States  to  a.centralized  demo- 
cratic absolutism.  The  doctrine  now  asserted  goes  the  length  of  subor- 
dinating all  State  authority  to  federal  authority:  for  it  involves  the  right 
of  the  latter  to  traverse  all  State  legislation,  to  set  aside  the  rules  made 
by  State  legislatures  for  the  government  of  the  State  judiciary,  to  punish 
State  officials  for  obeying  State  laws,  and  in  a word,  to  reduce  all  the 
States  to  the  level  of  mere  municipalities,  existing  only  at  the  will  and 
caprice  of  Congress.  The  tendency  in  this  direction  has,  as  we  have  often 

pointed  out,  increased  continually  since  the  close  of  the  war. All 

history  shows  that  the  diffusion  of  institutional  self-government  to  the 
greatest  possible  extent  is  necessary  to  the  securing  of  the  largest  meas- 
ure of  freedom  and  the  most  just  and  least  burdensome  government. 
This  diffusion  the  American  States  enjoyed  originally,  and  it  is  this  which 

is  threatened. The  danger  lies  not  alone  in  the  strongly  marked 

centralizing  policy  of  the  Supreme  Court,  but  in  the  formidable  support 

which  the  corrupt  condition  of  politics  gives  to  this  movement. The 

greater  a country  becomes,  the  denser  its  population,  the  more  complex 
its  interests,  the  more  necessary  is  it  that  the  people  everywhere  should 
keep  the  levers  of  self-government  in  their  own  hands.  For  the  removal 
of  authority  to  a distance  always  involves  the  weakening  of  responsibility 
and  the  encouragement  of  corruption.” 

The  second  jury  case  from  Virginia  arose  in  this  wise: 
Two  colored  persons  in  Virginia  were  indicted  in  a county 
court  in  that  State  for  the  crime  of  murder.  The  person 
alleged  to  have  been  murdered  was  a white  man.  On  being 
arraigned  they  pleaded  not  guilty,  and  on  their  demand 
their  trial  was  removed  to  the  circuit  court  of  the  county. 
The}*  there  moved  that  the  panel  of  jurors  summoned, 
which  was  composed  entirely  of  white  persons,  should  he 
so  modified  as  to  allow  one-third  of  the  number  to  he  per- 
sons of  the  colored  race. 

This  motion  was  denied,  as  it  satisfactorily  appeared  that 
the  jurors  had  been  drawn  from  the  jury-box  according  to 
law.  The  prisoners  then  presented  a petition  for  the  re- 
moval of  the  case  to  the  United  States  Circuit  Court,  alleg- 
ing, in  substance,  that  the  rights  secured  hv  the  law  pro- 
viding for  the  equal  civil  rights  of  all  citizens  of  the 
13 


194 


United  States  were  denied  to  them,  inasmuch  as  their  ap- 
plication for  a mixed  jury  had  been  refused.  It  also  al- 
leged that  a strong  prejudice  existed  in  the  community 
against  them  on  the  ground  of  their  color,  the  person  al- 
leged to  have  been  murdered  being  a white  man.  Their 
petition  was  denied  and  the  prisoners  were  separately  tried 
and  convicted  of  murder.  Both  obtained  new  trials,  one 
by  motion  to  the  court,  and  one  on  appeal  to  the  Court  of 
Appeals.  When  they  were  brought  up  for  a second  trial 
they  again  moved  to  have  tire  prosecution  removed  to  the 
Circuit  Court  of  the  United  States.  This  was  also  denied. 
They  were  then  tried  separately.  In  one  case  the  jury  dis- 
agreed and  the  prisoner  was  removed  to  jail  to  await  another 
trial.  In  the  other  case  the  prisoner  was  convicted  and  he 
was  sentenced  to  imprisonment  in  penitentiary. 

Whilst  the  prisoners  were  in  jail,  one  waiting  for  a new 
trial  and  the  other  until  he  could  be  removed  under  his 
seirtence  to  the  penitentiary,  they  procured  a copy  of  the 
record  of  proceedings  against  them  and  presented  it  to  the 
Circuit  Court  of  the  United  States  for  the  Western  Dis- 
trict of  Virginia,  then  held  by  Alexander  Rives,  the  dis- 
trict judge,  with  the  petition  for  removal  presented  to  the 
State  court,  and  prayed  that  the  prosecution  might  be  there 
docketed  and  proceeded  with.  The  circuit  court  granted 
the  petition,  directed  the  cases  to  be  placed  on  the  docket 
and  authorized  the  clerk  to  issue  a writ  of  habeas  corpus  to 
the  marshal  of  the  district  to  take  the  prisoners  into  his  cus- 
tody, and  to  summon  for  their  trial  twenty -five  jurors  to 
attend  at  the  next  term.  A writ  of  habeas  corpus  was  ac- 
cordingly issued,  and  pursuant  to  its  command  the  prison- 
ers were  taken  into  the  custody  of  the  marshal.  There- 
upon the  Commonwealth  of  Virginia  presented  a petition 
to  the  Supreme  Court  of  the  United  States  praying  for  a 
mandamus  to  be  directed  to  the  district  judge,  command- 
ing him  to  order  the  marshal  to  re-deliver  the  prisoners 
to  her  authorities,  upon  the  ground  that  the  judge  in  his 
proceedings  had  transcended  the  jurisdiction  of  his  court, 


195 


and  exercised  powers  not  vested  in  him.  An  order  was 
accordingly  issued  to  the  judge  to  show  cause  why  the 
writ  should  not  issue.  In  his  return  he  admitted  the  facts 
stated,  and  justified  his  action  on  the  ground  that  the  re- 
fusal of  the  State  court  to  set  aside  th$  panel  of  jurors,  and 
to  give  the  prisoners  a jury  composed  in  part  of  their  own 
race,  was  a denial  to  them  of  the  equal  protection  of  the 
laws,  and  brought  their  cases  within  the  provision  of  the 
act  of  Congress  authorizing  a removal  of  criminal  prose- 
cutions to  the  federal  courts.  The  attorney -general  of  Vir- 
ginia, contending  that  the  return  was  insufficient,  moved 
that  the  writ  might  be  issued  as  prayed. 

The  application  was  argued  by  the  same  counsel  who 
argued  the  first  jury  case.  The  court  granted  the  writ 
and  ordered  that  the  prisoners  should  be  returned  to  the 
State  court,  but  it  placed  its  decision  on  the  ground  that 
the  act  of  Congress,  providing  for  the  removal  of  criminal 
prosecutions  from  State  to  federal  courts,  was  only  intended 
for  cases  where  the  application  was  made  before  a trial  or 
final  hearing  had  commenced,  and  that  the  denial  of 
rights  for  which  a removal  was  authorized  was  such 
as  resulted  from  the  constitution  or  laws  of  the  State 
and  not  such  as  might  be  manifested  at  the  trial  or  hear- 
ing ; but  it  left  open  the  question  whether  Congress  could 
not  authorize  a transfer  of  a case  to  the  federal  courts 
at  any  stage  of  its  proceedings  whenever  a ruling  is 
made  denying  to  the  defendant  the  equal  protection 
of  the  laws.  Judges  Field  and  Clifford  concurred  in  the 
judgment  of  the  court  that  the  prisoners  should  be  re- 
turned to  the  officers  of  Virginia  from  whose  custody  they 
were  taken ; that  the  prosecution  against  them  should  be  re- 
manded to  the  State  court  from  which  it  was  removed,  and 
that  a mandamus  to  the  district  judge  was  an  appropriate 
remedy  to  effect  those  ends,  but  as  they  did  not  agree  with 
all  the  views  expressed  in  the  opinion  of  the  court,  and 
there  were  other  reasons  equally  cogent  with  those  given 
for  the  decision  rendered,  Judge  Field  thought  proper  to 


19t> 


state.,  in  a separate  opinion,  the  grounds  of  their  concur- 
rence. After  discussing  at  length  the  right  of  the  court 
to  issue  a mandamus  in  the  case,  and  referring  to  the  act 
of  Congress,  he  said  as  follows  : 

“ By  this  enactment  it  appears  that  in  order  to  obtain  a removal  of  a 
prosecution  from  a State  to  a federal  court — except  where  it  is  against  a 
public  officer  or  other  person  for  certain  trespasses  or  conduct  not  mate- 
rial to  cousider  in  this  connection — the  petition  of  the  accused  must 
show  a denial  of,  or  an  inability  to  enforce  in  the  tribunals  of  the  State, 
or  of  that  part  of  the  State  where  the  prosecution  is  pending,  some  right 
secured  to  him  by  the  law  providing  for  the  equal  rights  of  citizens  or 
persons  within  the  jurisdiction  of  the  United  States.  But  how  must  the 
denial  of  a right  under  such  a law,  or  the  accused’s  inability  to  enforce 
it  in  the  judicial  tribunals  of  the  State,  be  made  to  appear?  So  far  as 
the  accused  is  concerned,  the  law  requires  him  to  state  and  verify  the 
facts,  and  from  them  the  court  will  determine  whether  such  denial  or 
inability  exists.  His  naked  averment  of  such  denial  or  inability  can 
hardly  be  deemed  sufficient;  if  it  were  so,  few  prosecutions  would  be 
retained  in  a State  court  for  insufficient  allegations  when  the  accused 
imagined  he  would  gain  by  the  removal. — (Texas  vs.  Gaines,  2 Woods, 
344.)  There  must  be  such  a presentation  of  facts  as  to  lead  the  court  to 
the  conclusion  that  the  averments  of  the  accused  are  well  founded. 
There  are  many  ways  in  which  a person  may  be  denied  his  rights,  or  be 
unable  to  enforce  them  in  the  tribunals  of  a State.  The  denial  or  ina- 
bility may  arise  from  direct  legislation,  depriving  him  of  their  enjoy- 
ment or  the  means  of  their  enforcement,  or  discriminating  against  him  or 
the  class,  sect,  or  race  to  which  he  belongs.  And  it  may  arise  from  popular 
prejudices,  passions,  or  excitement,  biasing  the  minds  of  jurors  and 
judges.  Religious  animosities,  political  controversies,  antagonisms  of 
race,  and  a multitude  of  other  causes  will  always  operate,  in  a greater  or 
less  degree,  as  impediments  to  the  full  enjoyment  and  enforcement  of  civil 
rights.  We  cannot  think  that  the  act  of  Congress  contemplated  a denial 
of,  or  an  inability  to  enforce  one’s  rights  from  these  latter  and  similar 
causes,  and  intended  to  authorize  a removal  of  a prosecution  by  reason 
of  them  from  a State  to  a federal  court.  Some  of  these  causes  have  al- 
ways existed  in  some  localities  in  every  State,  and  the  remedy  for  them 
has  been  found  in  a change  of  the  place  of  trial  to  other  localities  where 
like  impediments  to  impartial  action  of  the  tribunals  did  not  exist.  The 
civil  rights  act,  to  which  reference  is  made  in  the  section  in  question, 
was  only  intended  to  secure  to  the  colored  race  the  same  rights  and  priv- 
ileges as  are  enjoyed  by  white  persons  ; it  was  not  designed  to  relieve  them 
from  those  obstacles  in  the  enjoyment  of  their  rights  to  which  all  other  per- 
sons are  subject,  and  which  grow  out  of  popular  prejudices  and  passions. 

“Tire  denial  of  rights  or  the  inability  to  enforce  them,  to  which  the 
section  refers,  is,  in  my  opinion,  such  as  arises  from  legislative  action  of 


197 


the  State,  as,  for  example,  an  act  excluding  colored  persons  from  being 
witnesses,  making  contracts,  acquiring  property,  and  the  like.  With  re- 
spect to  obstacles  to  the  enjoyment  of  rights  arising  from  other  causes, 
persons  of  the  colored  race  must  take  their  chances  of  removing  or  pro- 
viding against  them  with  the  rest  of  the  community. 

" This  conclusion  is  strengthened  by  the  provisions  of  the  14th  amend- 
ment to  the  Constitution.  The  original  civil  rights  act  was  passed,  it  is 
true,  before  the  adoption  of  that  amendment,  but  great  doubt  was  ex- 
pressed as  to  its  validity,  and  to  obtain  authority  for  similar  legislation, 
and  thus  obviate  the  objections  which  had  been  raised  to  its  first  section, 
was  one  of  the  objects  of  the  amendment.  After  its  adoption  the  civil 
rights  act  was  re-enacted,  and  upon  the  first  section  of  that  amendment 
it  rests.  That  section  is  directed  against  the  State.  Its  language  is  that 
‘ no  Slate  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States  ; nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.’  As  the  State,  in  the  administration  of  its  government,  acts  through 
its  executive,  legislative,  and  judicial  departments,  the  inhibition  applies 
to  them.  But  the  executive  and  judicial  departments  only  construe  and 
enforce  the  laws  of  the  State  ; the  inhibition,  therefore,  is  in  effect  against 
passing  and  enforcing  any  laws  which  are  designed  to  accomplish  the  ends 
forbidden.  If  an  executive  or  judicial  officer  exercises  power  with  which 
he  is  not  invested  by  law,  and  does  unauthorized  acts,  the  State  is  not 
responsible  for  them.  The  action  of  the  judicial  officer  in  such  a case, 
where  the  rights  of  a citizen  under  the  laws  of  the  United  States  are  dis- 
regarded. may  be  reviewed  and  corrected  or  reversed  by  this  court ; it 
cannot  be  imputed  to  the  State,  so  as  to  make  it  evidence  that  she  in  her 
sovereign  or  legislative  capacity  denies  the  rights  invaded  or  refuses  to 
allow  their  enforcement.  It  is  merely  the  ordinary  case  of  an  erro- 
neous ruling  of  au  inferior  tribunal.  Nor  can  the  unauthorized  action 
of  an  executive  officer,  impinging  upon  the  rights  of  the  citizen,  be  taken 
as  evidence  of  her  intention  or  policy  so  as  to  charge  upon  her  a denial  of 
such  rights. 

“ If  these  views  are  correct,  no  cause  is  shown  in  the  petition  of  the 
prisoners  that  justified  a removal  of  the  prosecutions  against  them  to  the 
federal  court.  No  law  of  Virginia  makes  any  discrimination  against  per- 
sons of  the  colored  race,  or  excludes  them  from  the  jury.  The  law  re- 
specting jurors  provides  that  ‘ all  male  citizens,  twenty-one  years  of  age 
and  not  over  sixty,  who  are  entitled  to  vote  and  hold  office  under  the  con- 
stitution and  laws  of  the  State,’  with  certain  exemptions  not  material  to 
the  question  presented,  may  be  jurors ; and  it  authorizes  an  annual  selec- 
tion in  each  county,  by  the  county  judge,  from  the  citizens  at  large,  of 
from  one  to  three  hundred  persons,  whose  names  are  to  be  placed  in  a 
box,  and  from  them  the  jurors,  grand  and  petit,  of  the  county  are  to  be 
drawn.  There  is  no  restriction  placed  upon  the  couuty  judge  in  selecting 


198 


them,  except  that  they  shall  be  such  as  he  shall  think  ‘ well  qualified  to 
serve  as  jurors,  being  persons  of  sound  judgment  and  free  from  legal  ex- 
ception.’ The  mode  thus  provided,  properly  carried  out,  cannot  fail  to 
secure  competent  jurors.  Certain  it  is  that  no  rights  of  the  prisoners  are 
denied  by  this  legislation.  The  application  to  the  State  court,  upon  the 
refusal  ot  which  the  peti  .ion  was  presented,  was  for  a venire  composed  of 
one-third  of  their  face,  a proceeding  wholly  inadmissible  in  any  jury  sys- 
tem which  obtains  in  the  several  States. 

“ From  the  return  of  the  district  judge  it  would  seem  that  in  his  judg- 
ment the  presence  of  persons  of  the  colored  race  on  the  jury  is  essential 
to  secure  to  them  ‘ the  equal  protection  of  the  laws  but  how  this  con- 
clusion is  reached  is  not  apparent,  except  upon  the  general  theory  that 
such  protection  can  only  be  afforded  to  parties  when  persons  of  the  class 
to  which  they  belong  are  allowed  to  sit  on  their  juries.  The  correctness 
of  this  theory  is  contradicted  by  every  day’s  experience.  Women  are 
not  allowed  to  sit  on  juries ; are  they  thereby  denied  the  equal  protection 
of  the  laws?  Foreigners  resident  in  the  country  are  not  permitted  to 
act  as  jurors,  yet  they  are  protected  in  their  rights  equally  with  citizens. 
Persons  over  sixty  years  of  age  in  Virginia  are  disqualified  as  jurors,  yet 
no  one  will  pretend  that  they  do  not  enjoy  the  equal  protection  of  the 
laws.  If  when  a colored  person  is  indicted  for  a criminal  offence  it  is  es- 
sential, to  secure  to  him  the  equal  protection  of  the  laws,  that  persons  of 
his  race  should  be  on  the  jury  by  which  he  is  tried,  it  would  seem  that 
the  presence  of  such  persons  on  the  bench  should  be  equally  essential, 
where  the  court  consists  of  more  than  one  judge  ; and  that  if  it  should 
consist  of  only  a single  judge,  such  protection  would  be  impossible.  To 
such  an  absurd  result  does  the  doctrine  lead,  which  the  circuit  court  an- 
nounced as  controlling  its  action. 

“ The  equality  of  protection  assured  by  the  fourteenth  amendment  to 
all  persons  in  the  State  does  not  imply  that  they  shall  be  allowed  to  par- 
ticipate in  the  administration  of  its  laws,  or  to  hold  any  of  its  offices,  or 
to  discharge  any  duties  of  a public  trust.  The  universality  of  the  pro- 
tection intended  excludes  any  such  inference.  Were  this  not  so,  aliens 
resident  in  the  country,  or  temporarily  here,  of  whom  there  are  many 
thousands  in  each  State,  would  be  without  that  equal  protection  which 
the  amendment  declares  that  no  State  shall  deny  to  any  person  within 
its  jurisdiction. 

“ It  follows  from  these  views  as  to  the  meaning  and  purpose  of  the  act 
of  Congress  that  the  removal  of  the  prosecution  in  this  case  from  the 
State  to  the  federal  court  is  unauthorized  by  it ; and  that  the  order  of 
the  circuit  court  to  the  marshal  to  take  the  prisoners  from  the  custody 
of  the  State  authorities  is  illegal  and  void. 

“ The  second  objection  of  the  Commonwealth  to  the  legality  of  the  re- 
moval is  equally  conclusive.  The  prosecution  is  for  the  crime  of  mur- 
der, committed  within  her  limits  by  persons  and  at  a place  subject  to  her 
jurisdiction.  The  offence  charged  is  against  her^ authority  and  laws,  and 


199 


she  alone  has  the  right  to  iuquire  into  its  commission,  and  to  punish  the 
offender.  Murder  is  not  an  offence  against  the  United  States,  except 
when  committed  on  an  American  vessel  on  the  high  seas,  or  in  some  port 
or  haven  without  the  jurisdiction  of  the  State,  or  in  the  District  of  Co- 
lumbia. or  in  the  Territories,  or  at  other  places  where  the  national  gov- 
ernment has  exclusive  jurisdiction.  The  offence  within  the  limits  of  a 
State,  except  where  jurisdiction  has  been  ceded  to  the  United  States,  is 
as  much  beyond  the  jurisdiction  of  their  courts  as  though  it  had  been 
committed  on  another  continent.  The  prosecution  of  the  offence  in  such 
a case  does  not,  therefore,  arise  under  the  Constitution  and  laws  of  the 
United  States;  and  the  act  of  Congress  which  attempts  to  give  the  fed- 
eral courts  jurisdiction  of  it  is,  to  my  mind,  a clear  infraction  of  the  Con- 
stitution. That  instrument  defines  and  limits  the  judicial  power  of  the 
United  States. 

“ It  declares,  among  other  things,  that  the  judicial  power  shall  extend 
to  cases  in  law  and  equity  arising  under  the  Constitution,  laws,  and  trea- 
ties of  the  United  States,  and  to  various  controversies  to  which  a State  is 
a party  : but  it  does  not  include  in  its  enumeration  controversies  between 
a State  and  its  own  citizens.  There  can  he  no  ground,  therefore,  for  the 
assumption  by  a federal  court  of  jurisdiction  of  offences  against  the  laws 
of  a State.  The  judicial  power  granted  by  the  Constitution  does  not 
cover  any  such  case  or  controversy.  And  whilst  it  is  well  settled  that 
the  exercise  of  the  power  granted  may  be  extended  to  new  cases  as  they 
arise  under  the  Constitution  and  laws,  the  power  itself  cannot  be  enlarged 
by  Congress.  The  Constitution  creating  a government  of  limited  powers 
puts  a bound  upon  those  which  are  judicial  as  well  as  those  which  are 
legislative,  which  cannot  be  lawfully  passed. 

“ This  view  would  seem  to  be  conclusive  against  the  validity  of  the 
attempted  removal  of  the  prosecution  in  this  case  from  the  State  court. 
The  federal  court  could  not  in  the  first  instance  have  taken  jurisdiction 
of  the  offence  charged,  and  summoned  a grand  jury  to  present  an  indict- 
ment against  the  accused  ; and  if  it  could  not  have  taken  jurisdiction  at 
first,  it  cannot  do  so  upon  a removal  of  the  prosecution  to  it.  The  juris- 
diction exercised  upon  the  removal  is  original  and  not  appellate,  as  is 
sometimes  erroneously  asserted,  for,  as  stated  by  Chief  Justice  Marshall 
in  Marbury  vs.  Madison,  already,  cited,  it  is  of  the  essence  of  appellate 
jurisdiction  that  it  revises  and  corrects  proceedings  already  had.  The 
removal  is  only  an  indirect  mode  by  which  the  federal  court  acquires 
original  jurisdiction. — (Railroad  Co.  vs.  Whitton,  13  Wall.,  287.) 

“ The  Constitution,  it  is  to  be  observed,  iu  the  distribution  of  the  judi- 
cial power,  declares  that  in  the  cases  enumerated  in  which  a State  is  a 
party,  the  Supreme  Court  shall  have  original  jurisdiction.  Its  framers 
seemed  to  have  entertained  great  respect  for  the  dignity  of  a State,  which 
was  to  remain  sovereign  at  least  in  its  reserved  powers,  notwithstanding 
the  new  government,  and  therefore  provided  that  when  a State  should 
have  occasion  to  seek  the  aid  of  the  judicial  power  of  the  new  govern- 


ment,  or  should  be  brought  under  its  subjection,  that  power  should  be 
invoked  only  in  its  highest  tribunal.  It  is  difficult  to  believe  that  the 
wise  men  who  sat  in  the  convention  which  framed  the  Constitution  and 
advocated  its  adoption,  ever  contemplated  the  possibility  of  a State  being 
required  to  assert  its  authority  over  offenders  against  its  laws  in  other 
tribunals  than  those  of  its  own  creation,  and  least  of  all  in  an  inferior 
tribunal  of  the  new  government.  I do  not  think  I am  going  too  far  in 
asserting  that  had  it  been  supposed  a power  so  dangerous  to  the  inde- 
pendence of  the  States,  and  so  calculated  to  humiliate  and  degrade  them, 
lurked  in  any  of  the  provisions  of  the  Constitution,  that  instrument 
would  never  have  been  adopted. 

“ There  are  many  other  difficulties  in  maintaining  the  position  of 
the  circuit  court,  which  the  counsel  of  the  accused  and  the  Attorney- 
General  have  earnestly  defended.  If  a criminal  prosecution  of  an  offen- 
der against  the  laws  of  a State  can  be  transferred  to  a federal  court,  what 
officer  is  to  prosecute  the  case  ? Is  the  attorney  of  the  Commonwealth 
to  follow  the  case  from  his  county,  or  will  the  United  States  district 
attorney  take  charge  of  it  ? Who  is  to  summon  the  witnesses  and  pro- 
vide for  their  fees  ? In  whose  name  is  judgment  to  he  pronounced  ? If  the 
accused  is  convicted  and  ordered  to  be  imprisoned,  who  is  to  enforce  the 
sentence?  If  he  is  deemed  worthy  of  executive  clemency,  who  is  to 
exercise  it — the  governor  of  the  State,  or  the  President  of  the  United 
States?  Can  the  President  pardon  for  an  offence  against  the  State? 
Can  the  governor  release  from  the  judgment  of  a federal  court?  These 
and  other  questions  which  might  be  asked  show,  as  justly  observed  by 
the  counsel  of  Virginia,  the  incongruity  and  absurdity  of  the  attempted 
proceeding. 

“ Undoubtedly,  if  in  the  progress  of  a criminal  prosecution  as  well  as 
in  the  progress  of  a civil  action,  a question  arise  as  to  any  matter  under 
the  Constitution  and  laws  of  the  United  States,  upon  which  the  defend- 
ant may  claim  protection,  or  any  benefit  in  the  case,  the  decision  thereon 
may  be  reviewed  by  the  federal  judiciary,  which  can  examine  the  case  so 
far  and  so  far  only  as  to  determine  the  correctness  of  the  ruling.  If  the 
decision  be  erroneous  in  that  respect  it  may  be  reversed  and  a new  trial  had. 
Provision  for  such  revision  was  made  in  the  25th  sectiou  of  the  judiciary 
act  of  1789  and  is  retained  in  the  Revised  Statutes.  That  great  act  was 
penned  by  Oliver  Ellsworth,  a member  of  the  convention  which  framed 
the  Constitution,  and  one  of  the  early  chief  justices  of  this  court.  It 
may  be  said  to  reflect  the  views  of  the  founders  of  the  Republic  as  to  the 
proper  relations  between  the  federal  and  State  courts.  It  gives  to  the  fed- 
eral courts  the  ultimate  decision  of  federal  questions  without  infringing 
upon  the  dignity  and  independence  of  the  State  courts.  By  it  harmony 
between  them  is  secured,  the  rights  of  both  federal  and  State  governments 
maintained,  and  every  privilege  and  immunity  which  the  accused  could 
assert  under  either  can  be  enforced.” 


201 


The  Election  Cases  from  Ohio  and  Maryland. : E. r -parte 
Clarke  and  Ex-purte  Siebold. 

The  Constitution  declares  that  “ the  times,  places,  and 
manner  of  holding  elections  for  senators  and  representa- 
tives shall  he  prescribed  in  each  State  by  the  legislature 
thereof  ; but  the  Congress  may,  at  any  time,  by  law,  make 
or  alter  such  regulations,  except  as  to  the  places  of  choosing 
senators.”  Congress  is  thus  authorized  to  make  such  reg- 
ulations itself  or  to  alter  those  prescribed  by  the  States, 
the  making  or  alteration  embracing  every  particular  of 
time,  place,  and  manner  except  the  place  of  choosing  sen- 
ators. The  regulations,  however,  can  only  extend  to  the 
designation  of  the  mode  in  which  the  will  of  the  voter 
shall  be  expressed  and  ascertained.  The  power  is  not 
lodged  in  Congress  to  prescribe  the  qualifications  of  voters; 
that  matter  is  left  to  the  States,  subject  to  the  provision 
that  the  electors  of  representatives  in  Congress  must  have 
the  qualifications  required  of  electors  of  the  most  numer- 
ous branch  of  the  State  legislature,  and  the  provision  of 
the  fifteenth  amendment  relating  to  the  suffrage  of  the 
colored  race.  Whatever  is  involved  in  the  manner  of 
holdiny  Congress  can  prescribe,  and  it  is  possible  that  so 
far  as  the  election  of  representatives  is  concerned  this  may 
embrace  all  necessary  provisions  for  ascertaining  the  names 
of  the  voters — thus  sanctioning  a registry  law — and  the  ap- 
pointment of  officers  of  election  to  collect  the  votes  and 
announce  the  result.  So  far  as  the  election  of  senators  is 
concerned,  whatever  regulations  are  prescribed,  they  must 
be  such  as  a legislative  body  can  conform  to  without  im- 
pairment of  its  independent  functions. 

The  constitutional  provision  was  adopted  in  order  that 
the  general  government  might  have  the  means  of  its  own 
preservation  against  a possible  dissolution  from  the  re- 
fusal or  neglect  of  the  States  to  provide  for  the  election  of 
representatives.  To  obtain  this  end  in  case  of  hostile 
action  of  the  States,  Congress  must  be  able  to  authorize 
all  necessary  measures  to  ensure  the  holding  of  an  election. 


202 


No  one  disputes  this  doctrine.  The  dispute  between 
the  two  great  parties  of  the  country  upon  the  election 
laws  of  Congress  has  not  arisen  from  any  exercise  of  the 
powers  conferred  by  the  clause  of  the  Constitution  in 
question,  for  no  regulations  have  been  adopted  by  Con- 
gress as  to  the  holding  of  the  elections,  except  as  to  the 
times  of  electing  representatives  and  senators,  and  in  case 
of  senators  by  requiring  the  separate  and  joint  action  of 
the  two  houses  of  of  the  State  legislatures.  These  regula- 
tions require  no  interference  in  their  execution  with  the 
officers  of  the  State.  The  dispute  has  arisen  from  the 
attempt  of  Congress  to  enforce  the  regulations  prescribed 
by  the  State  and  to  exercise  a supervision  over  its  officers, 
interfering  with  their  action,  and  endeavoring  to  arrest 
and  punish  them  for  alleged  violations  of  State  laws. 

Previous  to  the  election  laws  of  Congress  it  was  sup- 
posed to  he  a well-established  doctrine  that  State  officers 
were  responsible  only  to  the  State  for  the  manner  in  which 
they  discharged  their  duties  under  State  laws  ; that  when- 
ever the  federal  government  desired  to  enforce  by  coer- 
cive measures  and  punitive  sanctions  the  performance  of 
a duty  which  it  could  prescribe,  it  was  bound  to  appoint 
its  own  officers,  upon  whom  its  power  could  be  exerted; 
and  that  if  it  entrusted  the  performance  of  such  duty  to 
officers  of  a State,  it  was  obliged  to  take  their  agency  on 
the  terms  which  the  State  permitted.  In  other  words, 
although  Congress  could  by  law  prescribe  regulations  for 
the  election  of  representatives,  and  appoint  its  own  officers 
for  their  execution,  if  it  entrusted  their  execution  to  State 
officers  it  must  take  their  agency  upon  the  conditions 
which  the  State  might  exact.  If  on  the  other  hand  regu- 
lations were  prescribed  by  the  State,  it  was  for  the  officers 
of  the  State  to  enforce  them,  and  not  the  officers  of  the 
United  States. 

A°'ain,  regulations  for  the  election  of  State  officers  can 
only  be  prescribed  by  the  State,  and  any  regulations  by 
Congress  for  the  election  at  the  same  time  of  representa- 


203 


fives  in  Congress  must  be  so  framed  as  not  to  interfere 
with  the  free  election  of  State  officers  under  the  State 
laws.  Complaint  has  been  made  that  by  the  laws  of 
Congress  that  freedom  of  election  was  invaded. 

This  subject  came  up  for  consideration  before  the  Su- 
preme Court  of  the  United  States  at  the  October  term, 
1879.  At  an  election  held  in  the  First  Congressional  Dis- 
trict of  Ohio,  in  October,  1878,  at  which  a representative  in 
Congress  was  voted  for,  one  Clarke  was  appointed  under  the 
laws  of  the  State,  and  acted  as  a judge  of  election  at  a pre- 
cinct in  one  of  the  wards  of  Cincinnati.  At  an  election  held 
in  the  Fourth  and  Fifth  Congressional  Districts  of  Mary- 
land, in  November,  1878,  at  which  a like  representative 
was  voted  for,  one  Siebold  and  four  others  were  appointed 
under  the  laws  of  the  State  and  acted  as  judges  of  election 
at  different  precincts  in  the  city  of  Baltimore.  For  al- 
leged misconduct  as  such  officers  of  election  these  parties 
were  indicted  in  the  Circuit  Court  of  the  United  States  for 
their  respective  districts,  tried,  convicted,  and  sentenced 
to  imprisonment  for  twelve  months,  and  in  some  of  the 
cases  also  to  pay  a fine.  Clarke  was  charged  in  the  in- 
dictment with  having  violated  a law  of  the  State  of  Ohio. 
The  parries  from  Maryland  were  charged  with  having  pre- 
vented federal  officers  from  interfering  with  them  and  su- 
pervising their  action  in  the  execution  of  the  laws  of  that 
State.  All  of  them  petitioned  the  Supreme  Court  for 
writs  of  habeas  corpus , praying  that  they  might  be  released, 
on  the  alleged  ground  that  their  imprisonment  was  unlaw- 
ful, in  that  the  acts  of  Congress  under  which  they  were 
prosecuted  were  unconstitutional  and  void. 

The  cases  were  elaborately  argued  by  George  Hoadly, 
of  Cincinnati,  for  the  petitioner  from  Ohio  ; by  Bradley 
Johnson,  of  Baltimore,  for  the  petitioners  from  Maryland, 
and  by  the  Attorney-General  of  the  United  States  on  the 
other  side. 

The  Supreme  Court  held  that  the  acts  of  Congress  were 
valid,  and  that  the  parties  were  rightly  indicted  and  con- 


204 


victed.  They,  therefore,  refused  the  writs.  Judges  Clifford 
and  Field  dissented  from  the  judgment,  Judge  Field  read- 
ing a dissenting  opinion.  In  it  he  con  lined  himself  prin- 
cipally to  the  case  of  the  petitioner  from  Ohio,  as  the 
principle  which  governed  that  case  disposed  of  all  of  them; 
for,  as  he  said,  if  Congress  could  not  punish  an  officer  of 
a State  for  the  manner  in  which  he  discharged  his  duties 
under  her  laws,  it  could  not  subject  him  to  the  supervision 
and  control  of  others  in  the  performance  of  such  duties, 
and  punish  him  for  resisting  their  interference.  In  the 
cases  from  Maryland,  it  appeared  that  the  laws  of  the  State 
under  which  the  petitioners  were  appointed  judges  of  elec- 
tion, and  the  registration  of  voters  for  the  election  of  1878 
was  made,  were  not  in  existence  when  the  act  of  Congress 
was  passed  providing  for  the  appointment  of  supervisors 
to  examine  the  registration  and  scrutinize  the  lists,  and  of 
special  deputy  marshals  to  aid  and  protect  them.  The  act 
of  Congress  was  passed  in  1871,  and  re-published  in  the 
Revised  Statutes,  which  are  declaratory  of  the  law  in  force, 
December  1st,  1873.  The  law  of  Maryland,  under  which 
the  registration  of  voters  was  had,  was  enacted  in  1874, 
and  the  law  under  which  the  judges  of  election  were  ap- 
pointed was  enacted  in  187(1,  and  these  judges  were  required 
to  possess  different  qualifications  from  those  required  of 
judges  of  election  in  1871  and  1873. 

The  act  of  Congress  upon  which  the  indictment  of  the 
petitioner  of  Ohio  was  founded  is  contained  in  section 
5,515  of  the  Revised  Statutes,  which  declares  that  “ every 
officer  of  an  election,  at  which  anj^  representative  or  del- 
egate in  Congress  is  voted  for,  whether  such  officer  of 
election  be  appointed  or  created  by  or  under  any  law  or 
authority  of  the  United  States,  or  by  or  under  any  State, 
territorial,  district,  or  municipal  law  or  authority,  who  ne- 
glects or  refuses  to  perform  any  duty  in  regard  to  such 
election  required  of  him  by  any  law  of  the  United  States, 
or  of  any  State  or  Territory  thereof  ; or  who  violates  any 
duty  so  imposed;  or  who  knowingly  does  any  acts  thereby 


205 


unauthorized,  with  intent  to  affect  any  such  election  or  the 
result  thereof,  . . . shall  be  punished  as  prescribed  ” 
in  a previous  section,  that  is,  by  a fine  not  exceeding  one 
thousand  dollars,  or  imprisonment  not  more  than  one  year, 
or  by  both. 

The  provisions  of  the  act  of  Congress  relating  to  the 
appointment  of  supervisors  of  election,  for  resisting  and 
interfering  with  whom  the  petitioners  from  Maryland  were 
convicted,  authorized  the  supervisors  to  supervise  the  ac- 
tion of  the  State  officers  from  the  registration  of  voters 
down  to  the  close  of  the  polls  on  the  day  of  election ; re- 
quired the  marshals  to  aid  and  protect  them;  provided  for 
the  appointment  of  special  deputy  marshals  in  towns  and 
cities  of  over  twenty  thousand  inhabitants;  and  invested 
them  with  a power  to  arrest  and  take  into  custody  persons 
without  process,  more  extended  than  has  ever  before  been 
entrusted  to  any  one  in  this  country  in  time  of  peace. 

In  his  dissenting  opinion  Judge  Field,  speaking  for  him- 
self and  associate,  said  as  follows: 

“ In  what  I have  to  say  I shall  endeavor  to  show ; 1st,  that  it  is  not 
competent  for  Congress  to  punish  a State  officer  for  the  manner  in  which 
he  discharges  duties  imposed  upon  him  by  the  laws  of  the  State,  or  to 
subject  him  in  the  performance  of  such  duties  to  the  supervision  and 
control  of  others,  and  punish  him  for  resisting  their  interference;  and, 
2d,  that  it  is  not  competent  for  Congress  to  make  the  exercise  of  its  puni- 
tive power  dependent  upon  the  legislation  of  the  States. 

“ There  is  no  doubt  that  Congress  may  adopt  a law  of  a State,  but  in 
that  case  the  adopted  law  must  be  enforced  as  a law  of  the  United  States. 
Here  there  is  no  pretence  of  such  adoption.  In  the  case  from  Ohio  it  is 
for  the  violation  of  a State  law,  not  a law  of  the  United  States,  that  the 
indictment  was  found,  The  judicial  power  of  the  United  States  does  not 
extend  to  a case  of  that  kind.  The  Constitution  defines  and  limits  that 
power.  It  declares  that  it  shall  extend  to  cases  in  law  and  equity  arising 
under  the  Constitution,  the  laws  of  the  United  States,  and  treaties  made 
under  their  authority  ; to  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls;  to  cases  of  admiralty  and  maritime  jurisdiction,  and 
to  various  controversies  to  which  the  United  States  or  a State  is  a party, 
or  between  citizens  of  different  States,  or  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States,  or  between  citizens  of  a State 
and  any  foreign  State,  citizens,  or  subjects.  The  term  controversies  as 
here  used  refers  to  such  only  as  are  of  a civil  as  distinguished  from  those 


of  a criminal  nature.  The  judicial  power  thus  defined  may  be  applied  to 
new  cases  as  they  arise  under  the  Constitution  and  laws  of  the  United 
States,  but  it  cannot  be  enlarged  by  Congress  so  as  to  embrace  cases  not 
enumerated  in  the  Constitution.  It  has  been  so  held  by  this  court  from 
the  earliest  period.  It  was  so  adjudged  in  1803  in  Marbury  vs.  Mad- 
ison, and  the  adjudication  has  been  affirmed  in  numerous  instances 
since.  This  limitation  upon  Congress  would  seem  to  be  conclusive  of 
the  case  from  Ohio.  To  authorize  a criminal  prosecution  in  the  fed- 
eral courts  for  an  offence  against  a law  of  a State,  is  to  extend  the  judi- 
cial power  of  the  United  States  to  a case  not  arising  under  the  Con- 
stitution or  laws  of  the  United  States. 

“But  there  is  another  view  of  this  subject  which  is  equally  conclusive 
against  the  jurisdiction  of  the  federal  court.  The  act  of  Congress  asserts 
a power  inconsistent  with,  and  destructive  of,  the  independence  of  the 
States.  The  right  to  control  their  own  officers,  to  prescribe  the  duties 
they  shall  perform,  without  the  supervision  or  interference  of  any  other 
authority,  and  the  penalties  to  which  they  shall  be  subjected  for  a viola- 
tion of  duty  is  essential  to  that  independence.  If  the  federal  government 
can  punish  a violation  of  the  laws  of  the  State,  it  may  punish  obedience 
to  them,  and  graduate  the  punishment  according  to  its  own  judgment  of 
their  propriety  and  wisdom.  It  may  thus  exercise  a control  over  the 
legislation  of  the  States  subversive  of  all  their  reserved  rights.  However 
large  the  powers  conferred  upon  the  government  formed  by  the  Constitu- 
tion, and  however  numerous  its  restraints,  the  right  to  enforce  their  own 
laws  by  such  sanctions  as  they  may  deem  appropriate  is  left,  where  it 
was  originally,  with  the  States.  It  is  a right  which  has  never  been  sur- 
rendered. Indeed  a State  could  not  be  considered  as  independent  in  any 
matter,  with  respect  to  which  its  officers,  in  the  discharge  of  their  duties, 
could  be  subjected  to  punishment  by  any  external  authority  ; nor  in 
which  its  officers,  in  the  execution  of  its  laws,  could  be  subject  to  the 
supervision  and  interference  of  others. 

“ The  invalidity  of  coercive  measures  by  the  United  States,  to  compel 
an  officer  of  a State  to  perform  a duty  imposed  upon  him  by  a law  of 
Congress,  is  asserted  in  explicit  terms  in  the  case  of  The  Commonwealth 
of  Kentucky  vs.  Dennison. — (24  How.,  66.)  The  Constitution  declares 
that  ‘ a person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  de- 
mand of  the  executive  authority  of  the  State  from  which  he  fled,  be  de- 
livered up  to  be  removed  to  the  State  having  jurisdiction  of  the  crime.’ 
And  the  act  of  Congress  of  1793,  to  give  effect  to  this  clause,  made  it  the 
duty  of  the  executive  authority  of  the  State,  upon  the  demand  mentioned, 
and  the  production  of  a properly  authenticated  copy  of  the  indictment  or 
affidavit  charging  the  person  demanded  with  the  commission  of  treason, 
felony,  or  other  crime,  to  surrender  the  fugitive.  The  governor  of  Ohio 
having  refused  upon  a proper  demand  to  surrender  a fugitive  from  jus- 
tice from  Kentucky,  the  governor  of  the  latter  State  applied  to  this 


207 


court  for  a mandamus  to  compel  the  performance  of  that  duty.  But  the 
court,  after  observing  that,  though  the  words  ‘ it  shall  be  the  duty,’  in 
ordinary  legislation  implied  the  assertion  of  the  power  to  command  and 
to  cause  obedience,  said,  that  looking  to  the  subject-matter  of  the  law 
and  ' the  relations  which  the  United  States  and  the  several  States  bear 
to  each  other,'  it  was  of  opinion  that  the  words  were  not  used  as  manda- 
tory and  compulsory,  but  as  declaratory  of  the  moral  duty  created,  when 
Congress  had  provided  the  mode  of  carrying  the  provision  into  execution. 
‘ The  act  does  not  provide,’  the  court  added,  1 any  means  to  compel  the 
execution  of  this  duty,  nor  inflict  any  punishment  for  neglect  or  refusal 
on  the  part  of  the  executive  of  the  State ; nor  is  there  any  clause  or  pro- 
vision in  the  Constitution  which  arms  the  government  of  the  United 
States  with  this  power.  Indeed,  such  a power  would  place  every  State 
under  the  control  and  dominion  of  the  general  government,  even  in  the 
administration  of  its  internal  concerns  and  reserved  rights.  And  we 
think  it  clear  that  the  federal  government,  under  the  Constitution,  has 
no  power  to  impose  on  a State  officer,  as  such,  any  duty  whatever,  and 
compel  him  to  perform  it ; for  if  it  possessed  this  power  it  might  overload 
the  officer  with  duties  which  would  fill  up  all  his  time,  and  disable  him 
from  performing  his  obligations  to  the  State,  and  might  impose  on  him 
duties  of  a character  incompatible  with  the  rank  and  dignity  to  which 
he  was  elevated  by  the  State.  It  is  true  that  Congress  may  authorize  a 
particular  State  officer  to  perform  a particular  duty ; but  if  he  declines 
to  de  so,  it  does  not  follow  that  he  may  be  coerced  or  punished  for  his 
refusal.  And  we  are  very  far  from  supposing  that  in  using  this  word 
‘ duty,’  the  statesmen  who  framed  and  passed  the  law,  or  the  President 
who  approved  and  signed  it,  intended  to  exercise  a coercive  power  over 
State  officers  not  warranted  by  the  Constitution.’  And  again:  ‘If  the 
governor  of  Ohio  refuses  to  discharge  this  duty,  there  is  no  power  dele- 
gated to  the  general  government,  either  through  the  judicial  department 
or  any  other  department,  to  use  any  coercive  means  to  compel  him.’ 

“If  it  be  incompetent  for  the  federal  government  to  enforce,  by  coer- 
cive measures,  the  performance  of  a plain  duty  imposed  by  a law  of  Con- 
gress upon  the  executive  officer  of  a State,  it  would  seem  to  be  equally 
incompetent  for  it  to  enforce,  by  similar  measures,  the  performance  of  a 
duty  imposed  upon  him  by  a law  of  a State.  If  Congress  cannot  impose 
upon  a State  officer,  as  such,  the  performance  of  any  duty,  it  would  seem 
logically  to  follow  that  it  cannot  subject  him  to  punishment  for  the  neg- 
lect of  such  duties  as  the  State  may  impose.  It  cannot  punish  for  the 
non-performance  of  a duty  which  it  cannot  prescribe.  It  is  a contradic- 
tion in  terms  to  say  that  it  can  inflict  punishment  for  disobedience  to  an 
act,  the  performance  of  which  it  has  no  constitutional  power  to  command. 

“ I am  not  aware  that  the  doctrine  of  this  case,  which  is  so  essential  to 
the  harmonious  working  of  the  State  and  federal  governments,  has  ever 
been  qualified  or  departed  from  by  this  court  until  the  recent  decisions 
in  the  Virginia  cases,  of  which  I shall  presently  speak.  It  is  true  that, 


at  an  early  period  in  the  history  of  the  government,  laws  were  passed  by 
Congress  authorizing  State  courts  to  entertain  jurisdiction  of  proceedings 
by  the  United  States,  to  enforce  penalties  and  forfeitures  under  the  reve- 
nue laws,  and  to  hear  allegations,  and  take  proofs  if  applications  were 
made  for  their  remission.  To  these  laws  reference  is  made  in  the  Ken- 
tucky case,  and  the  court  observes,  that  the  powers,  which  they  conferred, 
were  for  some  years  exercised  by  the  State  tribunals  without  objection, 
until  in  some  of  the  States  their  exercise  was  declined  because  it  inter- 
fered with  and  retarded  the  performance  of  duties  which  properly  be- 
longed to  them  as  State  courts ; and  in  other  States  because  doubts  arose 
as  to  the  power  of  the  State  courts  to  inflict  penalties  and  forfeitures  for 
offences  against  the  general  government,  unless  specially  authorized  to  do 
so  by  the  States  ; and  that  the  co-operation  of  the  States  in  those  cases 
was  a matter  of  comity  which  the  several  sovereignties  extended  to  one 
another  for  their  mutual  benefit,  and  was  not  regarded  by  either  party  as 
an  obligation  imposed  by  the  Constitution. 

“ It  is  to  be  observed  that  by  the  Constitution  the  demand  for  the  sur- 
render of  a fugitive  is  to  be  made  by  the  executive  authority  of  the  State 
from  which  he  has  fled,  but  it  is  not  declared  upon  whom  the  demand 
shall  be  made.  That  was  left  to  be  determined  by  Congress,  and  it 
provided  that  the  demand  should  be  made  upon  the  executive  of  the 
State  where  the  fugitive  was  found.  It  might  have  employed  its  own 
agents,  as  in  the  enforcement  of  the  fugitive  slave  law,  and  compel  them 
to  act.  But  in  both  cases,  if  it  employed  the  officers  of  the  State  it  could 
not  restrain  nor  coerce  them. 

“ Whenever,  therefore,  the  federal  government,  instead  of  acting  through 
its  own  officers,  seeks  to  accomplish  its  purposes  through  the  agency  of 
officers  of  the  States,  it  must  accept  the  agency  with  the  conditions  upon 
which  the  officers  are  permitted  to  act.  For  example,  the  Constitution  in- 
vests Congress  with  the  ‘power  to  establish  a uniform  rule  of  naturaliza- 
tion and  this  power,  from  its  nature,  is  exclusive.  A concurrent  power 
in  the  States  would  prevent  the  uniformity  of  regulations  required  on  the 
subject. — (Chirac  vs.  Chirac,  2 Wheaton,  259;  The  Federalist,  No.  42.) 
Yet  Congress,  in  legislating  under  this  power,  has  authorized  courts  of 
record  of  the  States  to  receive  declarations  under  oath  by  aliens  of  their 
intention  to  become  citizens,  and  to  admit  them  to  citizenship  after  a 
limited  period  of  residence,  upon  satisfactory  proof  as  to  character  and 
attachment  to  the  Constitution.  But  when  Congress  prescribed  the  con- 
ditions and  proof  upon  which  aliens  might,  by  the  action  of  the  State 
courts,  become  citizens,  its  power  ended.  It  could  not  coerce  the  State 
courts  to  hold  sessions  for  such  applications,  nor  fix  the  time  when  they 
should  hear  the  applicants,  nor  the  manner  in  which  they  should  admin- 
ister the  required  oaths,  nor  regulate  in  any  way  their  procedure.  It 
could  not  compel  them  to  act  by  mandamus  from  its  own  tribunals;  nor 
subject  their  judges  to  criminal  prosecution  for  their  non-action.  It  could 
accept  the  agency  of  those  courts  only  upon  such  terms  as  the  States 


209 


should  prescribe.  The  same  thing  is  true  in  all  cases  where  the  agency 
of  State  officers  is  used  ; and  this  doctrine  applies  with  special  force  to 
judges  of  elections  at  which  numerous  State  officers  are  chosen  at  the 
same  time  with  representatives  to  Congress.  So  far  as  the  election  of 
State  officers  and  the  registration  of  voters  for  their  election  are  con- 
cerned, the  federal  government  has  confessedly  no  authority  to  interfere. 
And  yet  the  supervision  of  and  interference  with  the  State  regulations, 
sanctioned  by  the  act  of  Congress,  when  representatives  to  Congress  are 
voted  for,  amount  practically  to  a supervision  of  and  an  interference  with 
the  election  of  State  officers,  and  constitute  a plain  encroachment  upon  the 
rights  of  the  States,  which  is  well  calculated  to  create  irritation  towards 
the  federal  government,  and  disturb  the  harmony  that  all  good  and  pa- 
triotic men  should  desire  to  exist  between  it  and  the  State  governments. 

" It  was  the  purpose  of  the  framers  of  the  Constitution  to  create  a 
government  which  could  enforce  its  own  laws,  through  its  own  officers 
and  tribunals  without  reliance  upon  those  of  the  States,  and  thus  avoid 
the  principal  defect  of  the  government  of  the  Confederation  ; aud  they 
fully  accomplished  their  purpose,  for,  as  said  by  Chief  Justice  Marshall  in 
the  McCullough  case,  1 No  trace  is  to  be  found  in  the  Constitution  of  an 
intention  to  create  a dependence  of  the  federal  government  on  the  govern- 
ments of  the  States  for  the  execution  of  the  great  powers  assigned  to  it. 
Its  means  are  adequate  to  its  ends,  and  on  those  means  alone  was  it  ex- 
pected to  rely  for  the  accomplishment  of  its  ends.’  When,  therefore,  the 
federal  government  desires  to  compel  by  coercive  measures  and  punitive 
sanctions  the  performance  of  any  duties  devolved  upon  it  by  the  Consti- 
tution, it  must  appoint  its  own  officers  and  agents,  upon  whom  its  power 
can  be  exerted.  If  it  sees  fit  to  entrust  the  performance  of  such  duties 
to  officers  of  a State,  it  must  take  their  agency,  as  already  stated,  upon 
the  conditions  whieh  the  State  may  impose.  The  co-operative  scheme  to 
which  the  majority  of  the  court  give  their  sanction,  by  which  the  gen- 
eral government  may  create  one  condition  and  the  States  another,  and 
each  make  up  for  aud  supplement  the  omissions  or  delects  in  the  legisla- 
tion of  the  other,  touchiug  the  same  subject,  with  its  separate  penalties 
for  the  same  offence,  and  thus  produce  a harmonious  mosaic  of  statutory 
regulation,  does  not  appear  to  have  struck  the  great  jurist  as  a feature  in 
our  system  of  government  or  one  that  had  been  sanctioned  by  its  found- 
ers. 

" It  is  true  that  since  the  recent  amendments  of  the  Constitution  there 
has  been  legislation  by  Congress  asserting,  as  in  the  instance  before  us, 
a direct  control  over  State  officers,  which  previously  was  never  supposed 
to  be  compatible  with  the  independent  existence  of  the  States  in  their 
reserved  powers.  Much  of  that  legislation  has  yet  to  be  brought  to  the 
test  of  judicial  examination  : and  until  the  recent  decisions  in  the  Vir- 
ginia eases,  I could  not  have  believed  that  the  former  carefully  considered 
and  repeated  judgments  of  this  court  upon  provisions  of  the  Constitution, 
and  upon  the  general  character  and  purposes  of  that  instrument,  would 
14 


210 


have  been  disregarded  and  overruled.  These  decisions  do  indeed,  in  my 
judgment,  constitute  a new  departure.  They  give  to  the  federal  govern- 
ment the  power  to  strip  the  States  of  the  right  to  vindicate  their  author- 
ity in  their  own  courts  against  a violator  of  their  laws,  when  the  trans- 
gressor happens  to  be  an  officer  of  the  United  States,  or  alleges  that  he  is 
denied  or  cannot  enforce  some  right  under  their  laws.  And  they  assert 
for  the  federal  government  a power  to  subject  a judicial  officer  of  a State 
to  punishment  for  the  manner  in  which  he  discharges  his  duties  under  her 
laws.  The  power  to  punish  at  all  existing,  the  nature  and  extent  of  the 
punishment  must  depend  upon  the  will  of  Congress,  and  may  be  carried 
to  a removal  from  office.  In  my  judgment,  and  I say  it  without  intend- 
ing any  disrespect  to  my  associates,  no  such  advance  has  ever  before  been 
made  toward  the  conversion  of  our  federal  system  into  a consolidated  and 
centralized  government.  I cannot  think  that  those  who  framed  and  ad- 
vocated, and  the  States  which  adopted  the  amendments,  contemplated 
any  Such  fundamental  change  in  our  theory  of  government  as  those  de- 
cisions indicate.  Prohibitions  against  legislation  on  particular  subjects 
previously  existed,  as,  for  instance,  against  passing  a bill  of  attainder  and 
an  ex  post  facto  law,  or  a law  impairing  the  obligation  of  contracts  ; and 
in  enforcing  those  prohibitions  it  was  never  supposed  that  criminal  pros- 
ecutions could  be  authorized  against  members  of  the  State  legislature  for 
passing  the  prohibited  laws,  or  against  members  of  the  State  judiciary 
for  sustaining  them,  or  against  executive  officers  for  enforcing  the  judi- 
cial determinations.  Enactments  prescribing  such  prosecutions  would 
have  given  a fatal  blow  to  the  independence  and  autonomy  of  the  States. 
So  of  all  or  nearly  all  the  prohibitions  of  the  recent  amendments  the 
same  doctrine  may  be  asserted.  In  few  instances  could  legislation  by 
Congress  be  deemed  appropriate  for  their  enforcement,  which  should  pro- 
■vide  for  the  annulment  of  prohibited  laws  in  any  other  way  than  through 
the  instrumentality  of  an  appeal  to  the  judiciary,  when  they  impinged 
upon  the  rights  of  parties.  If  in  any  instance  there  could  be  such  legis- 
lation authorizing  a crimiual  prosecution  for  disregarding  a prohibition, 
that  legislation  should  define  the  offence  and  declare  the  punishment, 
and  not  invade  the  independent  action  of  the  different  departments  of 
the  State  governments  within  their  appropriate  spheres.  Legislation  by 
Congress  can  neither  be  necessary  nor  appropriate  which  would  subject  to 
criminal  prosecution  State  officers  for  the  performance  of  duties  pre- 
scribed by  State  laws,  not  having  for  their  object  the  forcible  subversion 
of  the  government. 

“ The  clause  of  the  Constitution,  upon  which  reliance  was  placed  by 
counsel,  on  the  argument,  for  the  legislation  in  question,  does  not,  as  it 
seems  to  me,  give  the  slightest  support  to  it.  That  clause  declares  that 
‘the  times,  places,  and  manner  of  holding  elections  for  senators  and  rep- 
resentatives shall  be  prescribed  in  each  State  by  the  legislature  thereof; 
but  the  Congress  may,  at  any  time,  by  law,  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  senators.’  The  power  of  Con- 


gross  thus  conferred  is  either  to  alter  the  regulations  prescribed  by  the 
State  or  to  make  new  ones ; the  alteration  or  new  creation  embracing 
every  particular  of  time,  place,  and  manner,  except  the  place  of  choosing- 
senators.  But  in  neither  mode  nor  in  any  respect  has  Congress  inter- 
fered with  the  regulations  prescribed  by  the  legislature  of  Ohio,  or  with 
those  prescribed  by  the  legislature  of  Maryland.-  It  has  not  altered  them 
or  made  new  ones.  It  has  simply  provided  for  the  appointment  of  offi- 
cers to  supervise  the  execution  of  the  State  laws,  and  of  marshals  to  aid 
and  protect  them  in  such  supervision,  and  has  added  a new  penalty  for 
disobeying  those  laws.  This  is  not  enforcing  an  altered  or  a new  regu- 
lation. Whatever  Congress  may  properly  do  touching  the  regulations, 
one  of  two  things  must  follow  : either  the  altered  or  the  new  regulation 
remains  a State  law,  or  it  becomes  a law  of  Congress.  If  it  remain  a 
State  law.  it  must,  like  other  laws  of  the  State,  be  enforced  through  its 
instrumentalities  and  agencies,  and  with  the  penalties  which  it  may  see 
tit  to  prescribe,  and  without  the  supervision  or  interference  of  federal  of- 
ficials. If.  on  the  other  hand,  it  become  a law  of  Congress,  it  must  be 
carried  into  execution  by  such  officers  and  with  such  sanctions  as  Con- 
gress may  designate.  But  as  Congress  has  not  altered  the  regulations  for 
the  election  of  representatives  prescribed  by  the  Legislature  of  Ohio  or 
of  Maryland,  either  as  to  time,  place,  or  manner,  nor  adopted  any  regu- 
lations of  its  own,  there  is  nothing  for  the  federal  government  to  enforce 
on  the  subject.  The  general  authority  of  Congress  to  pass  all  laws  nec- 
essary to  carry  into  execution  its  granted  powers,  supposes  some  attempt 
to  exercise  those  powers.  There  must,  therefore,  be  some  regulations 
made  by  Congress,  either  by  altering  those  prescribed  by  the  State,  or  by 
adopting  entirely  new  ones,  as  to  the  times,  places,  and  manner  of  hold- 
ing elections  for  representatives,  before  any  incidental  powers  can  be  in- 
voked to  compel  obedience  to  them.  In  other  words,  the  implied  power 
cannot  be  invoked  until  some  exercise  of  the  express  power  is  attempted, 
and  then  only  to  aid  its  execution.  There  is  no  express  power  in  Con- 
gress to  enforce  State  laws  by  imposing  penalties  for  disobedience  to 
them  ; its  punitive  power  is  only  implied  as  a necessary  or  proper  means 
of  enforcing  its  own  laws  ; nor  is  there  any  power  delegated  to  it  to  su- 
pervise the  execution  by  State  officers  of  State  laws. 

“If this  view  be  correct,  there  is  no  power  in  Congress,  independently 
of  all  other  considerations,  to  authorize  the  appointment  of  supervisors 
and  other  officers  to  superintend  and  interfere  with  the  election  of  repre- 
sentatives under  the  laws  of  Ohio  and  Maryland,  or  to  annex  a penalty 
to  the  violation  of  those  laws,  and  the  action  of  the  circuit  courts  was 
without  jurisdiction  and  void.  The  act  of  Congress  in  question  was 
passed,  as  it  seems  to  me,  in  disregard  of  the  object  of  the  constitutional 
provision.  That  was  designed  simply  to  give  to  the  general  government 
the  means  of  its  own  preservation  against  a possible  dissolution  from  the 
hostility  of  the  States  to  the  election  of  representatives,  or  from  their 
neglect  to  provide  suitable  means  for  holding  such  elections.  This  is 


212 


evident  from  the  language  of  its  advocates,  some  of  them  members  of  the 
convention,  when  the  Constitution  was  presented  to  the  country  for  adop- 
tion. In  commenting  upon  it  in  his  report  of  the  debates,  Mr.  Madison 
said,  that  it  was  meant  ‘ to  give  the  national  legislature  a power  not  only 
to  alter  the  provisions  of  the  States,  but  to  make  regulations,  in  case  the 
States  should  fail  or  refuse  altogether.' — (Elliott’s  Debates,  402.)  And  in 
the  Virginia  convention  called  to  consider  the  Constitution,  he  observed 
that  ‘it  was  found  impossible  to  fix  the  time,  place,  and  manner  of  the 
election  of  representatives  in  the  Constitution.  It  was  found  necessary 
to  leave  the  regulation  of  these,  in  the  first  place,  to  the  State  govern- 
ments, as  being  best  acquainted  with  the  situation  of  the  people,  subject 
to  the  control  of  the  general  government,  in  order  to  enable  it  to  produce 
uniformity,  and  prevent  its  own  dissolution.' — (3  Elliott’s  Debates,  367.) 
And  in  the  Federalist,  Hamilton  said,  that  the  propriety  of  the  clause  in 
question  rested  1 upon  the  evidence  of  the  plain  proposition  that  every 
government  should  contain  in  itself  the  means  of  its  own  preservation.’ 

“Similar  language  is  found  in  the  debates  in  conventions  of  the  other 
States  and  in  the  writings  of  jurists  and  statesmen  of  the  period.  The 
conduct  of  Rhode  Island  was  referred  to  as  illustrative  of  the  evils  to  be 
avoided.  That  State  was  not  represented  by  delegates  in  Congress  for 
years,  owing  to  the  character  and  views  of  the  prevailing  party;  and 
Congress  was  often  embarrassed  by  their  absence.  The  same  evil,  it  was 
urged,  might  result  from  a similar  cause,  and  Congress  should,  therefore, 
possess  the  power  to  give  the  people  an  opportunity  of  electing  represen- 
tatives if  the  States  should  neglect  or  refuse  to  make  the  necessary  regu- 
lations. 

“ In  the  conventions  of  several  States  which  ratified  the  Constitution, 
an  amendment  was  proposed  to  limit  in  express  terms  the  action  of  Con- 
gress to  cases  of  neglect  or  refusal  of  a State  to  make  proper  provisions 
for  congressional  elections,  and  was  supported  by  a majority  of  the  thir- 
teen States;  but  it  was  finally  abandoned  upon  the  ground  of  the  great 
improbability  of  congressional  interference  so  long  as  the  States  performed 
their  duty.  When  Congress  does  interfere  and  provide  regulations,  the 
duty  of  rendering  them  effectual,  so  far  as  they  may  require  affirmative 
action,  will  devolve  solely  upon  the  federal  government.  It  will  then  be 
federal  power  which  is  to  be  exercised,  and  its  enforcement,  if  promoted 
by  punitive  sanctions,  must  be  through  federal  officers  and  agents;  for, 
as  said  by  Mr.  Justice  Story  in  Prigg  vs.  Pennsylvania,  ‘The  national 
government,  in  the  absence  of  all  positive  provisions  to  the  contrary,  is 
bound,  through  its  own  proper  department,  legislative,  judicial,  or  execu- 
tive, as  the  case  may  require,  to  carry  into  effect  all  the  rights  and  duties 
imposed  upon  it  by  the  Constitution.’  If  State  officers  and  State  agents 
are  employed,  they  must  be  taken,  as  already  said,  with  the  conditions 
upon  which  the  States  may  permit  them  to  act,  and  without  responsibil- 
ity to  the  federal  authorities.  The  power  vested  in  Congress  is  to  alter 
the  regulations  prescribed  by  the  legislatures  of  the  States,  or  to  make 


213 


new  ones,  as  to  the  times,  places,  and  manner  of  holding  the  elections. 
Those  which  relate  to  the  times  and  places  will  seldom  require  any  affirm- 
ative action  beyond  their  designation.  And  regulations  as  to  the  manner 
of  holding  them  cannot  extend  beyond  the  designation  of  the  mode  in 
which  the  will  of  the  voters  shall  be  expressed  and  ascertained.  The 
power  does  not  authorize  Congress  to  determine  who  shall  participate  in 
the  election,  or  what  shall  be  the  qualifications  of  voter's.  These  are  mat- 
ters not  pertaining  to  or  involved  in  the  manner  of  holding  the  election, 
and  their  regulation  rests  exclusively  with  the  States.  The  only  restric- 
tion upon  them  with  respect  to  these  matters  is  found  in  the  provision 
that  the  electors  of  representatives  in  Congress  shall  have  the  qualifica- 
tions required  for  electors  of  the  most  numerous  branch  of  the  State  leg- 
islature, and  the  provision  relating  to  the"  suffrage  of  the  colored  race. 
And  whatever  regulations  Congress  may  prescribe  as  to  the  manner  of 
holding  the  election  for  representatives  must  be  so  framed  as  to  leave  the 
election  of  State  officers  free,  otherwise  they  cannot  be  maintained.  In 
one  of  the  numbers  of  the  Federalist,  Mr.  Hamilton,  in  defending  the 
adoption  of  the  clause  in  the  Constitution,  uses  this  language:  ‘ Suppose 
an  article  had  been  introduced  into  the  Constitution  empowering  the 
United  States  to  regulate  the  elections  for  the  particular  States,  would 
any  man  have  hesitated  to  condemn  it,  both  as  an  unwarrantable  trans- 
position of  power,  and  as  a premeditated  engine  for  the  destruction  of  the 
State  governments?  The  violation  of  principle  in  this  case  would  have 
required  no  comment."  By  the  act  of  Congress  sustained  by  the  court  an 
interference  with  State  elections  is  authorized  almost  as  destructive  of 
their  control  by  the  States  as  the  direct  regulation  which  he  thought  no 
man  would  hesitate  to  condemn. 

“ The  views  expressed  derive  further  support  from  the  fact  that  the 
constitutional  provision  applies  equally  to  the  election  of  senators,  except 
as  to  the  place  of  choosing  them,  as  it  does  to  the  election  of  representa- 
tives. It  will  not  be  pretended  that  Congress  could  authorize  the  ap- 
pointment of  supervisors  to  examine  the  roll  of  members  of  State  legis- 
latures and  pass  upon  the  validity  of  their  titles,  or  to  scrutinize  the  bal- 
loting for  senators ; or  could  delegate  to  special  deputy  marshals  the  power 
to  arrest  any  member  resisting  and  repelling  the  interference  of  the  su- 
pervisors. But  if  Congress  can  [authorize  such  officers  to  interfere  with 
the  judges  of  election  appointed  under  State  laws  in  the  discharge  of  their 
duties  when  representatives  are  voted  for,  it  can  authorize  such  officers  to 
interfere  with  members  of  the  State  legislatures  when  senators  are  voted 
for.  The  language  of  the  Constitution  conferring  power  upon  Congress 
to  alter  the  regulations  of  the  States,  or  to  make  new  regulations  on  the 
subject,  is  as  applicable  in  the  one  case  as  in  the  other.  The  objection  to 
such  legislation  in  both  cases  is  that  State  officers  are  not  responsible  to 
the  federal  government  for  the  manner  in  which  they  perform  their  du- 
ties, nor  subject  to  its  control.  Penal  sanctions  and  coercive  measures  by 
federal  law  cannot  be  enforced  against  them.  "Whenever,  as  in  somd  in- 


214 


stances  is  the  case,  a State  officer  is  required  by  the  Constitution  to  per- 
forin a duty,  the  manner  of  which  may  be  prescribed  by  Congress,  as  in 
the  election  of  senators  by  members  of  State  legislatures,  those  officers 
are  responsible  only  to  their  States  for  their  official  conduct.  The  federal 
government  cannot  touch  them.  There  are  remedies  for  their  disregard 
of  its  regulations,  which  can  be  applied  without  interfering  with  their 
official  character  as  State  officers.  Thus  if  its  regulations  for  the  election 
of  senators  should  not  be  followed,  the  election  had  in  disregard  of  them 
might  be  invalidated  ; but  no  one,  however  extreme  in  his  views,  would 
contend  that  in  such  a case  the  members  of  the  legislature  could  be  sub- 
jected to  criminal  prosecution  for  their  action.  With  respect  to  the  elec- 
tion of  representatives,  so  long  as  Congress  does  not  adopt  regulations  of 
its  own  and  enforce  them  through  federal  officers,  but  permits  the  regula- 
tions of  the  States  to  remain,  it  must  depend  for  a compliance  with  them 
upon  the  fidelity  of  the  State  officers  and  their  responsibility  to  their  own 
government.  All  the  provisions  of  the  law.  therefore,  authorizing  super- 
visors and  marshals  to  interfere  with  those  officers  in  the  discharge  of 
their  duties,  and  providing  for  criminal  prosecutions  against  them  in  the 
federal  courts,  are,  in  my  judgment,  clearly  in  conflict  with  the  Constitu- 
tion. The  law  was  adopted,  no  doubt,  with  the  object  of  preventing 
frauds  at  elections  for  members  of  Congress,  but  it  does  not  seem  to  have 
occurred  to  its  authors  that  the  States  are  as  much  interested  as  the  gen- 
eral government  in  guarding  against  frauds  at  those  elections  and  in  main- 
taining their  purity,  and,  if  possible,  more  so,  as  their  principal  officers 
are  elected  at  the  same  time.  If  fraud  be  successfully  perpetrated  in  any 
case,  they  will  be  the  first  and  the  greatest  sufferers.  They  are  invested 
with  the  sole  power  to  regulate  domestic  affairs  of  the  highest  moment 
to  the  prosperity  and  happiness  of  their  people,  affecting  the  acquisition, 
enjoyment,  transfer,  and  descent  of  property  ; the  marriage  relation,  and 
the  education  of  children;  and  if  such  momentous  and  vital  concerns 
may  be  wisely  and  safely  entrusted  to  them,  I do  not  think  that  a ny  ap- 
prehension need  be  felt  if  the  supervision  of  all  elections  in  their  respec- 
tive States  should  also  be  left  to  them. 

“ Much  has  been  said  in  argument  of  the  power  of  the  general  govern- 
ment to  enforce  its  own  laws,  and  in  so  doing  to  preserve  the  peace, 
though  it  is  not  very  apparent  what  pertinency  the  observations  have  to 
the  questions  involved  in  the  cases  before  us.  No  one  will  deny  that  in 
the  powers  granted  to  it  the  general  government  is  supreme,  and  that, 
upon  all  subjects  within  their  scope,  it  can  make  its  authority  respected 
and  obeyed  throughout  the  limits  of  the  Republic  ; and  that  it  can  repress 
all  disorders  and  disturbance  which  interfere  with  the  enforcement  of  its 
laws.  But  I am  unable  to  perceive  in  this  fact,  which  all  sensible  men 
acknowledge,  any  cause  for  the  exercise  of  ungranted  power.  The  greater 
its  lawful  power,  the  greater  the  reason  for  not  usurping  more.  Unrest, 
disquiet,  and  disturbance  will  always  arise  among  a people,  jealous  of 
their  rights,  from  the  exercise  by  the  general  government  of  powers  which 
they  have  reserved  to  themselves  or  to  the  States. 


215 


" My  second  proposition  is  that  it  is  not  competent  for  Congress  to  make 
the  exercise  of  its  punitive  power  dependent  upon  the  legislation  of  the 
States.  The  act,  upon  which  the  indictment  of  the  petitioner  from  Ohio 
is  founded,  makes  the  neglect  or  violation  of  a duty  prescribed  by  a law 
of  the  State  in  regard  to  an  election  at  which  a representative  in  Con- 
gress is  voted  for,  a criminal  offence.  It  does  not  say  that  the  neglect  or 
disregard  of  a duty  prescribed  by  any  existing  law  shall  constitute  such 
an  offence.  It  is  the  neglect  or  disregard  of  any  duty  prescribed  by  any 
law  of  the  Stat e,  present  or  future.  The  act  of  Congress  is  not  changed  in 
terms  with  the  changing  laws  of  the  State  ; but  its  penalty  is  to  be 
shifted  with  the  shifting  humors  of  the  State  legislatures.  I cannot 
think  that  such  punitive  legislation  is  valid  which  varies,  not  by  direc- 
tion of  the  federal  legislators,  upon  new  knowledge  or  larger  experience, 
but  by  the  direction  of  some  external  authority  which  makes  the  same 
act  lawful  in  one  State  and  criminal  in  another,  not  according  to  the 
views  of  Congress  as  to  its  propriety,  but  to  those  of  another  body.  The 
Constitution  vests  all  the  legislative  power  of  the  federal  government  in 
Congress;  and  from  its  nature  this  power  cannot  be  delegated  to  others, 
except  as  its  delegation  may  be  involved  by  the  creation  of  an  inferior 
local  government  or  department.  Congress  can  endow  territorial  govern- 
ments and  municipal  corporations  with  legislative  powers,  as  the  posses- 
sion of  such  powers  for  certain  purposes  of  local  administration  is  indis- 
pensable to  their  existence.  So,  also,  it  can  invest  the  heads  of  depart- 
ments and  of  the  army  and  navy  with  power  to  prescribe  regulations  to 
enforce  discipline,  order,  and  efficiency.  Its  possession  is  implied  in  their 
creation  : but  legislative  power  over  subjects  which  come  under  the  im- 
mediate control  of  Congress,  such  as  defining  offences  against  the  United 
States,  and  prescribing  punishment  for  them  cannot  be  delegated  to  any 
other  government  or  authority.  Congress  cannot,  for  example,  leave  to 
the  States  the  enactment  of  laws  and  restrict  the  United  States  to  their 
enforcement.  There  are  many  citizens  of  the  United  States  in  foreign 
countries,  in  Japan,  China,  India,  and  Africa.  Could  Congress  enact  that 
a crime  against  one  of  those  States  should  be  punished  as  a crime  against 
the  United  States  ? Can  Congress  abdicate  its  functions  and  depute  foreign 
countries  to  act  for  it  ? If  Congress  cannot  do  this  with  respect  to  offences 
against  those  States,  how  can  it  enforce  penalties  for  offences  against 
any  other  States,  though  they  be  of  our  own  Union  ? If  Congress  could 
depute  its  authority  in  this  way  ; if  it  could  say  that  it  will  punish  as 
an  offence  what  another  power  enacts  as  such,  it  might  do  the  same  thing 
with  respect  to  the  commands  of  any  other  authority,  as,  for  example,  of 
the  President  or  the  head  of  a department.  It  could  enact  that  what  the 
President  proclaims  shall  be  law  ; that  what  he  declares  to  be  offences 
shall  be  punished  as  such.  Surely  no  one  will  go  so  far  as  this,  and  yet 
1 am  unable  to  see  the  distinction  in  principle  between  the  existing  law 
and  the  one  I suppose,  which  seems  so  extravagant  and  absurd. 

“•  I will  not  pursue  the  subject  further,  but  those  who  deem  this  ques- 
tion at  all  doubtful  or  difficult,  may  find  something  worthy  of  thought 


216 


in  the  opinions  of  the  Court  of  Appeals  of  New  York  and  of  the  supreme 
courts  of  several  other  States,  where  this  subject  is  treated  with  a full- 
ness and  learning,  which  leaves  nothing  to  be  improved  and  nothing  to 
he  added.” 


Corporations.- — Cases  relating  to  their  Powers  and 

Liabilities,  and  tiieir  Subjection  to  the  Control  of 

the  State. 

Corporations  of  all  kinds,  public  and  private,  foreign  and 
domestic,  commercial,  benevolent, and  religious,  have  been 
the  frequent  subject  of  consideration  by  the  Supreme  Court. 
Their  powers  and  liabilities,  their  creation,  amendment, 
and  dissolution;  how  far  they  are  to  be  regarded  as  con- 
tracts within  the  prohibition  of  the  Constitution  against 
State  impairment,  and  how  far  they  are  subject  to  the  con- 
trol of  the  State,  have  been  treated  in  numerous  cases 
with  exhaustive  fullness.  Every  judge  on  the  bench  has 
given  opinions  in  some  of  the  cases.  Judge  Field  has 
given  opinions  in  several  of  them;  and,  among  others,  in 
the  following  : Paul  vs.  Virginia  (8  "Wallace,  168) ; Marsh 
vs.  Fulton  County  (10  Wallace,  676);  Tomlinson  vs.  Jes- 
sup (15  Wallace,  454);  Minot  vs.  The  Philadelphia,  Wil- 
mington and  Baltimore  Railroad  Company  (18  Wallace, 
206);  Board  of  Commissioners  of  Tippecanoe  County  vs. 
Lucas,  Treasurer  (93  U.  S.,  108);  Broughton  vs.  Pensa- 
cola (Ibid.,  266);  and  United  States  vs.  Few  Orleans  (98 
U.  S.,  381).  In  the  case  of  The  Pensacola  Telegraph 
Company  vs.  The  Western  Union  Telegraph  Company  he 
wrote  a dissenting  opinion  (96  U.  S.,  14). 

In  Paul  vs.  Virginia  the  court  held  that  corporations 
were  not  citizens  within  the  meaning  of  the  clause  of  the 
Constitution  which  declares  that  “ the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States  ;”  that  the  terms  “ citi- 
zens ” as  there  used  applied  only  to  natural  persons,  mem- 


bers  of  the  body-politic,  owing  allegiance  to  the  State,  and 
not  to  artificial  persons  created  by  the  legislature  and 
possessing  only  the  attributes  which  the  legislature  had 
prescribed.  It  was  true,  the  court  observed,  that  it  had 
been  held  that  where  contracts  or  rights  of  property  were 
to  be  enforced  by  or  against  a corporation,  the  courts 
of  the  United  States  will,  for  the  purpose  of  maintaining 
jurisdiction,  consider  the  corporation  as  representing  citi- 
zens of  the  State  under  the  laws  of  which  it  was  created, 
and  to  that  extent  would  treat  a corporation  as  a citizen 
within  the  clause  of  the  Constitution  extending  the  judic- 
icial  power  of  the  United  States  to  controversies  between 
citizens  of  different  States;  but  the  court  added  that  in 
no  case  had  a corporation  been  considered  a citizen  witlnn 
.the  meaning  of  the  provision,  which  declares  that  “ the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States.”  With 
respect  to  that  provision  Judge  Field,  speaking  for  the 
court,  said  as  follows  : 

“ It  was  undoubtedly  the  object  of  the  clause  in  question  to  place  the 
citizens  of  each  State  upon  the  same  footing  with  citizens  of  other  States, 
so  far  as  the  advantages  resulting  from  citizenship  in  those  States  are  con- 
cerned. It  relieves  them  from  the  disabilities  of  alienage  in  otlierStates  ; 
it  inhibits  discriminating  legislation  against  them  by  other  States ; it 
gives  them  the  right  of  free  ingress  into  other  States,  and  egress  from 
them  : it  insures  to  them  in  other  States  the  same  freedom  possessed  by 
the  citizens  of  those  States  in  the  acquisition  and  enjoyment  of  property 
and  in  the  pursuit  of  happiness;  and  it  secures  to  them  in  other  States 
the  equal  protection  of  their  laws.  It  has  been  justly  said  that  no  pro- 
vision in  the  Constitution  has  tended  so  strongly  to  constitute  the  citi- 
zens of  the  United  States  one  people  as  this.*  Indeed,  without  some  pro- 
vision of  the  kind  removing  from  the  citizens  of  each  State  the  disabili- 
ties of  alienage  in  the  other  States,  and  giving  them  equality  of  privilege 
with  citizens  of  those  States,  the  Republic  would  have  constituted  little 
more  than  a league  of  States;  it  would  not  have  constituted  the  Union 
which  now  exists. 

“ But  the  privileges  and  immunities  secured  to  citizens  of  each  State  in 
the  several  States,  by  the  provision  in  question,  are  those  privileges  and 
immunities  which  are  common  to  the  citizens  in  the  latter  States  under 


* Lemmon  vs.  The  People,  20  New  York,  607. 


218 


their  constitution  and  laws  by  virtue  of  their  being  citizens.  Special 
privileges  enjoyed  by  citizens  in  their  own  States  are  not  secured  in  other 
States  by  this  provision.  It  was  not  intended  by  the  provision  to  give  to 
the  laws  of  one  State  any  operation  in  other  States.  They  can  have  no 
such  operation,  except  by  the  permission,  express  or  implied,  of  those 
States.  The  special  privileges  which  they  confer  must,  therefore,  be  en- 
joyed at  home,  unless  the  assent  of  other  States  to  their  enjoyment  therein 
be  given. 

“ Now  a grant  of  corporate  existence  is  a grant  of  special  privileges  to 
the  corporators,  enabling  them  to  act  for  certain  designated  purposes  as  a 
single  individual,  and  exempting  them  (unless  otherwise  specially  pro- 
vided) from  individual  liability.  The  corporation  being  the  mere  creation 
of  local  law,  can  have  no  legal  existence  beyond  the  limits  of  the  sov- 
ereignty where  created.  As  said  by  this  court  in  Bank  of  Augusta  vs. 
Earle , ‘it  must  dwell  in  the  place  of  its  creation,  and  cannot  migrate  to 
another  sovereignty.’  The  recognition  of  its  existence  even  by  other 
States,  and  the  enforcement  of  its  contracts  made  therein,  depend  purely 
upon  the  comity  of  those  States — a comity  which  is  never  extended  where 
the  existence  of  the  corporation  or  the,  exercise  of  its  powers  arc  preju- 
dicial to  their  interests  or  repugnant  to  their  policy.  Having  no  absolute 
right  of  recognition  in  other  .States,  but  depending  for  such  recognition 
and  the  enforcement  of  its  contracts  upon  their  assent,  it  follows,  as  a 
matter  of  course,  that  such  assent  may  be  granted  upon  such  terms  and 
conditions  as  those  .States  may  think  proper  to  impose.  They  may  ex- 
clude the  foreign  corporation  entirely  ; they  may  restrict  its  business  to 
particular  localities,  or  they  may  exact  such  security  for  the  performance 
ol'its  contracts  with  their  citizens  as  in  their  judgment  will  best  promote 
the  public  interest.  The  whole  matter  rests  in  their  discretion. 

“ If,  on  the  other  hand,  the  provision  of  the  Constitution  could  be  con- 
strued to  secure  to  citizens  of  each  State  in  other  States  the  peculiar 
privileges  conferred  by  their  laws,  an  extra-territorial  operation  would  be 
given  to  local  legislation  utterly  destructive  of  the  independence  and  the 
harmony  of  the  States.  At  the  present  day  corporations  are  multiplied 
to  an  almost  indefinite  extent.  There  is  scarcely  a business  pursued  re- 
quiring the  expenditure  of  large  capital,  or  the  union  of  large  numbers, 
that  is  not  carried  on  by  corporations.  It  is  not  too  much  to  say  that  the 
wealth  and  business  of  the  country  are  to  a great  extent  controlled  by 
them.  And  if,  when  composed  of  citizens  of  one  State,  their  corporate 
p>owers  and  franchises  could  be  exercised  in  other  States  without  restric- 
tion, it  is  easy  to  see  that,  with  the  advantages  thus  possessed,  the  most 
important  business  of  those  States  would  soon  pass  into  their  hands. 
The  principal  business  of  every  State  would,  in  fact,  be  controlled  by  cor- 
porations created  by  other  States. 

“ If  the  right  asserted  of  the  foreign  corporation,  when  composed  of 
citizens  of  one  State,  to  transact  business  in  other  States  were  even  re- 
stricted to  such  business  as  corporations  of  those  States  were  authorized 


t 


219 


to  transact,  it  would  still  follow  that  those  States  would  be  unable  to 
limit  the  number  of  corporations  doing  business  therein.  They  could 
not  charter  a company  for  any  purpose,  however  restricted,  without  at 
once  opening  the  door  to  a flood  of  corporations  from  other  States  to  en- 
gage in  the  same  pursuits.  They  could  not  repel  an  intruding  corporation, 
except  on  the  condition  of  refusing  incorporation  for  a similar  purpose 
to  their  own  citizens,  and  yet  it  might  be  of  the  highest  public  interest 
that  the  number  of  corporations  in  the  State  should  be  limited ; that 
they  should  be  required  to  give  publicity  to  their  transactions;  to  sub- 
mit their  affairs  to  proper  examination ; to  be  subject  to  forfeiture  of 
their  corporate  rights  in  case  of  mismanagement,  and  that  their  officers 
should  he  held  to  a strict  accountability  for  the  manner  in  which  the 
business  of  the  corporation  is  managed,  and  be  liable  to  summary  re- 
moval. 

■' ' It  is  impossible,’  to  repeat  the  language  of  this  court  in  Bank  of  Au- 
gusta is.  Earle,  ‘upon  any  sound  principle,  to  give  such  a construction  to 
the  article  in  question,’ — a construction  which  would  lead  to  results  like 
these.” 

Iii  Marsh  vs.  Fulton  County  the  court  held  that  where 
bonds  of  a county  were  issued  without  authority  by  its 
supervisors  to  a railroad  company,  they  were  invalid  in 
the  hands  of  an  innocent  purchaser;  that  the  authority  to 
contract  must  exist  before  any  protection. as  such  purchaser 
can  he  claimed  by  the  holder.  And  further,  that  where 
the  supervisors  possessed  no  authority  to  make  a subscrip- 
tion or  issue  bonds  to  a railroad  company  in  the  first  in- 
stance, without  the  previous  sanction  of  the  qualified  voters 
of  the  county,  they  could  not  ratify  a subscription  to  the 
company  already  made  without  such  authority.  Said  the 
court,  speaking  through  Judge  Field,  as  follows  : 

" A ratification  is,  in  its  effect  upon  the  act  of  an  agent,  equivalent  to 
the  possession  by  him  of  a previous  authority.  It  operates  upon  the  act 
ratified  in  the  same  manner  as  though  the  authority  of  the  agent  to  do 
the  act  existed  originally.  It  follows  that  a ratification  can  only  be  made 
when  the  party  ratifying  possesses  the  power  to  perform  the  act  ratified. 
The  supervisors  possessed  no  authority  to  make  the  subscription  or  issue 
the  bonds  in  the  first  instance  without  the  previous  sanction  of  the  quali- 
fied voters  of  the  county.  The  supervisors,  in  that  particular,  were  the 
mere  agents  of  the  county.  They  could  not,  therefore,  ratify  a subscrip- 
tion without  a vote  of  the  county,  because  they  could  not  make  a sub- 
scription in  the  first  iusfance  without  such  authorization.  It  would  be 
absurd  to  say  that  they  could,  without  such  vote,  by  simple  expressions 


220 


of  approval,  or  in  some  other  indirect  way,  give  validity  to  acts,  when 
they  were  directly  in  terms  prohibited  by  statute  from  doing  those  acts 
until  after  such  vote  was  had.  That  would  be  equivalent  to  saying  that 
an  agent,  not  having  the  power  to  do  a particular  act  for  his  principal, 
could  give  validity  to  such  act  by  its  indirect  recognition  * 

“ We  do  not  mean  to  intimate  that  liabilities  may  not  be  incurred  by 
counties  independent  of  the  statute.  Undoubtedly  they  may.  The 
obligation  to  dojustice  rests  upon  all  persons,  natural  and  artificial,  and 
if  a county  obtains  the  money  or  property  of  others  without  authority, 
the  law,  independent  of  any  statute,  will  compel  restitution  or  compen- 
sation. But  this  is  a very  different  thing  from  enforcing  an  obligation 
attempted  to  be  created  in  one  w ay,  when  the  statute  declares  that  it 
shall  only  be  created  in  another  and  different  way.” 

In  Tomlinson  vs.  Jessup  the  court  held  that,  where  a 
general  law  of  South  Carolina  passed  in  1841  provided  that 
the  charter  of  every  corporation  subsequently  granted,  and 
any  renewal,  amendment,  or  modification  thereof,  should 
be  subject  to  amendment,  alteration,  or  repeal  by  legisla- 
tive authority,  unless  the  act  granting  the  charter  or  the 
renewal,  amendment,  or  modification,  in  express  terms 
excepted  it  from  the  general  law,  it  was  competent  for 
the  legislature  of  the  State  to  alter  an  amendment  to  a 
corporation  subsequently  created,  which  exempted  its  prop- 
erty from  taxation  without  such  exception,  and  to  subject 
the  property  to  taxation ; that  the  power  reserved  to  the' 
State  by  the  general  law  authorized  any  change  in  the 
contract  of  the  corporation,  created  by  the  charter  between 
the  corporators  and  the  State,  as  it  originally  existed,  or  as 
subsequently  modified,  or  its  entire  revocation.  On  this 
point,  Judge  Field,  speaking  for  the  court,  said  as  follows  : 

“ The  object  of  the  reservation,  and  of  similar  reservations  in  other 
charters,  is  to  prevent  a grant  of  corporate  rights  and  privileges  in  a form 
which  will  preclude  legislative  interference  with  their  exercise  if  the 
public  interest  should  at  any  time  require  such  interference.  It  is  a 
provision  intended  to  preserve  to  the  State  control  over  its  contract  with 
the  corporators,  which  without  that  provision  would  be  irrepealable  and 

protected  from  any  measures  affecting  its  obligation. Immunity  from 

taxation,  constituting  in  these  cases  a part  of  the  contract  with  the  gov- 
ernment, is,  by  the  reservation  of  power  such  as  is  contained  in  the  law 


* McCracken  vs.  City  of  San  Francisco,  16  Cal.,  624. 


of  1841,  subject  to  be  revoked  equally  with  any  other  provision  of  the 
charter  whenever  the  legislature  may  deem  it  expedient  for  the  public 
interests  that  the  revocation  shall  be  made.  The  reservation  affects  the 
entire  relation  between  the  State  and  the  corporation,  and  places  under  leg- 
islative control  all  rights,  privileges,  and  immunities  derived  by  its 
charter  directly  from  the  State.  Eights  acquired  by  third  parties,  and 
which  have  become  vested  under  the  charter,  in  the  legitimate  exercise 
of  its  powers,  stand  upon  a different  looting ; but  of  such  rights  it  is 
unnecessary  to  speak  here.  The  State  onty  asserts  in  the  present  case 
the  power  under  the  reservation  to  modify  its  own  contract  with  the 
corporators ; it  does  not  contend  for  a power  to  revoke  the  contracts  of 
the  corporation  with  other  parties,  or  to  impair  any  vested  rights  thereby 
acquired.” 

In  Minot  vs.  The  Philadelphia,  Wilmington  and  Balti- 
more Railroad  Company — designated  in  the  reports  as 
“The  Delaware  Railroad  Tax” — the  court  gave  strong 
expression  to  the  rule  that  exemption  from  taxation  by 
the  State  must  be  strictly  pursued.  On  this  point, 
speaking  through  Judge  Field,  it  said  as  follows  : 

“ It  lias  also  been  repeatedly  held  by  this  court  that  the  legislature  of 
a State  may  exempt  particular  parcels  of  property  or  the  property  of  par- 
ticular persons  or  corporations  from  taxation  either  for  a specified  period 
or  perpetually,  or  may  limit  the  amount  or  rate  of  taxation  to  which 
such  property  shall  be  subjected.  And  when  such  immunity  is  conferred, 
or  such  limitation  is  prescribed  by  the  charter  of  a corporation,  it  becomes 
a part  of  the  contract,  and  is  equally  inviolate  with  its  other  stipulations. 
But  before  any  such  exemption  or  limitation  can  be  admitted,  the  intent 
of  the  legislature  to  confer  the  immunity  or  prescribe  the  limitation, 
must  be  clear  beyond  a reasonable  doubt.  All  public  grants  are  strictly 
construed.  Nothing  can  be  taken  against  the  State  by  presumption  or 
inference.  The  established  rule  of  construction  in  such  cases  is  that 
rights,  privileges,  and  immunities,  not  expressly  granted,  are  reserved. 
There  is  no  safety  to  the  public  interests  in  any  other  rule.  And  with 
special  force  does  the  principle,  upon  which  the  rule  rests,  apply  when 
the  right,  privilege,  or  immunity  claimed  calls  for  any  abridgment  of  the 
powers  of  the  government,  or  any  restraint  upon  their  exercise.  The 
power  of  taxation  is  an  attribute  of  sovereignty,  and  is  essential  to  every 
independent  government.  As  this  court  has  said,  the  whole  community 
is  interested  in  retaining  it  undiminished,  and  lias  1 aright  to  insist  that 
its  abandonment  ought  not  to  be  presumed  in  a case  in  which  the  delib- 
erate purpose  of  the  State  to  abandon  it  does  not  appear.’*  If  the  point 
were  not  already  adj  udged,  it  would  admit  of  grave  consideration,  whether 


Providence  Bank  vs.  Billings,  4 Peters,  561. 


222 


the  legislature,  ol'  a State  can  surrender  this  power,  and  make  its  action 
in  this  respect  binding  upon  its  successors,  any  more  than  it  can  surrender 
its  police  power  or  its  right  of  eminent  domain.  But  the  point  being  ad- 
judged, the  surrender,  when  claimed,  must  be  shown  by  clear,  unambig- 
uous language,  which  will  admit  of  no  reasonable  construction  consistent 
with  the  reservation  of  the  power.  If  a doubt  arise  as  to  the  intent  of 
the  legislature,  that  doubt  must  be  solved  in  favor  of  the  State.’’ 

The  same  doctrine  is  reiterated  in  equally  emphatic 
terms  in  the  ease  of  Iioge  vs.  The  Railroad  Company  (99 
U.  H 354-5). 

In  the  case  of  Hoard  of  Commissioners  of  Tippecanoe 
County  vs.  Lucas,  Tgfeasurer,  the  court  held  that  municipal 
corporations  are  mere  instrumentalities  of  the  State  for 
the  convenient  administration  of  government,  and  that 
their  powers  may  be  qualified,  enlarged,  or  withdrawn  at 
the  pleasure  of  the  legislature;  that  the  tenure  of  property, 
derived  from  the  State  for  specific  public  purposes,  or 
obtained  for  such  purposes  through  means  which  the  State 
alone  can  authorize, — that  is,  taxation — is  so  far  subject 
to  the  control  of  'the  legislature,  that  the  property  may  be 
applied  to  other  public  uses  of  the  municipality  than  those 
original!}7  designated,  and,  therefore,  that  it  was  compe- 
tent for  the  legislature  to  direct  a restitution  to  taxpayers 
of  a county,  or  other  municipal  corporation,  of  property 
exacted  from  them  by  taxation,  into  whatever  form  the 
property  may  have  been  changed,  so  long  as  it  remained 
in  the  possession  of  the  municipality. 

In  Broughton  vs.  Pensacola  the  court  held  that  a change 
in  the  charter  of  a municipal  corporation,  in  whole  or  in 
part,  by  an  amendment  of  its  provisions,  or  the  substitution 
of  a new  charter  in  place  of  the  old  one,  embracing  sub- 
stantially the  same  coporators  and  the  same  territory, 
would  not  be  deemed,  in  the  absence  of  express  legislative 
declaration  otherwise,  to  affect  the  identity  of  the  corpo- 
ration, or  to  relieve  it  from  its  previous  liabilities,  although 
different  powers  were  possessed  under  the  amended  or  new 
charter,  and  different  officers  administered  its  affairs.  The 
court  said,  speaking  through  Judge  Field,  as  follows  : 


“Although  a municipal  corporation,  so  far  as  it  is  invested  with  subor- 
dinate legislative  powers  for  local  purposes,  is  a mere  instrumentality  of 
the  State  for  the  convenient  administration  of  government,  yet,  when  au- 
thorized to  take  stock  in  a railroad  company,  and  issue  its  obligations  in 
payment  of  the  stock,  it  is  to  that  extent  to  be  deemed  a private  corpor- 
ation. and  its  obligations  are  secured  by  all  the  guaranties  which  protect 
the  engagements  of  private  individuals.  The  inhibition  of  the  Constitu- 
tion. which  preserves  against  the  interference  of  a State  the  sacredness  of 
contracts,  applies  to  the  liabilities  of  municipal  corporations  created  by 
its  permission,  and  although  the  repeal  or  modification  of  the  charter  of 
a corporation  of  that  kind  is  not  within  the  inhibition,  yet  it  will  not  be 
admitted,  where  its  legislation  is  susceptible  of  another  construction,  that 
the  State  has  in  this  way  sanctioned  an  evasion  of  or  escape  from  liabilities, 
the  creation  of  which  it  authorized.  When,  therefore,  a new  form  is 
given  to  an  old  municipal  corporation,  or  such  a corporation  is  reorgan- 
ized under  a new  charter,  taking,  in  its  new  organization,  the  place  of  the 
old  one,  embracing  substantially  the  same  corporators  and  the  same  ter- 
ritory, it  will  be  presumed  that  the  legislature  intended  a continued  ex- 
istence of  the  same  corporation,  although  different  powers  are  possessed 
under  the  new  charter,  and  different  officers  administer  its  affairs  ; and 
in  the  absence  of  express  provision  for  their  payment  otherwise,  it  will 
also  be  presumed  in  such  case  that  the  legislature  intended  that  the  lia- 
bilities, as  well  as  the  rights  of  property  of  the  .corporation  in  its  old 
form,  should  accompany  the  corporation  in  its  reorganization.  That  such 
was  the  intention  of  the  State  of  Florida  in  the  present  ease,  we  have  no 
doubt;  to  suppose  otherwise  would  be  to  impute  to  her  an  insensibility 
to  the  claims  of  morality  and  justice,  which  nothing  in  her  history  war- 
rants. 

“ The  principle  which  applies  to  the  State  would  seem  to  be  applicable 
to  eases  of  this  kind.  Obligations  contracted  by  its  agents  continue 
against  the  State  whatever  changes  may  take  place  in  its  constitution  of 
government.  ‘ The  new  government,’  says  Wheaton,  ‘ succeeds  to  the  fis- 
cal rights,  and  is  bound  to  fulfill  the  fiscal  obligations  of  the  former  gov- 
ernment. It  becomes  entitled  to  the  public  domain  and  other  property 
of  the  State,  and  is  bound  to  pay  its  debts  previously  contracted.’ — (Inter. 
Law,  30.)  So  a change  in  the  charter  of  a municipal  corporation,  in 
whole  or  part,  by  an  amendment  of  its  provisions,  or  the  substitution  of 
a new  charter  in  place  of  the  old  one,  should  not  be  deemed,  in  the  ab- 
sence of  express  legislative  declaration  otherwise,  to  affect  the  identity 
of  the  corporation,  or  to  relieve  it  from  its  previous  liabilities.” 

In  the  case  of  the  United  States  vs.  Xew  Orleans,  the 
court  held  that  where  municipal  corporations  are  created, 
the  power  of  taxation  is  vested  in  them  as  an  essential 
attribute  for  all  the  purposes  of  their  existence,  unless  its 
exercise  be  in  express  terms  prohibited  ; and  that  when, 


224 


in  order  to  execute  a public  work,  they  have  been  vested 
with  authority  to  borrow  money  or  incur  an  obligation, 
they  have  the  power  to  levy  a tax  to  raise  revenue  to  pay 
the  money  or  discharge  the  obligation  without  any  special 
mention  that  such  power  is  granted,  and  that  in  case  of  a 
refusal  to  provide  for  the  payment  of  the  indebtedness 
contracted,  a mandamus  should  be  issued  to  compel  the 
levying  of  such  tax.  On  this  point  the  court  said,  speak- 
ing through  Judge  Field  : 

“The  position  that  the  power  of  taxation  belongs  exclusively  to  the 
legislative  branch  of  the  government,  no  one  will  controvert.  Under  our 
system  it  is  lodged  nowhere  else.  But  it  is  a power  that  may  be  dele- 
gated by  the  legislature  to  municipal,  corporations,  which  are  merely  the 
instrumentalities  of  the  State  for  the  better  administration  of  the  govern- 
ment in  matters  of  local  concern.  When  such  a corporation  is  created 
the  power  of  taxation  is  vested  in  it  as  an  essential  attribute  for  all  the 
purposes  of  its  existence,  unless  its  exercise  be  in  express  terms  prohib- 
ited. For  the  accomplishment  of  those  purposes,  its  authorities,  however 
limited  the  corporation,  must  have  the  power  to  raise  money  and  control 
its  expenditure.  In  a city,  even  of  small  extent,  they  have  to  provide 
for  the  preservation  of  peace,  good  order,  and  health,  and  the  execution 
of  such  measures  as  conduce  to  the  general  good  of  its  citizens;  such  as 
the  opening  and  repairing  of  streets,  the  construction  of  sidewalks,  sew- 
ers, and  drains,  the  introduction  of  water,  and  the  establishment  of  a tire 
and  police  department.  In  a city  like  New  Orleans,  situated  on  a navi- 
gable stream,  or  on  a harbor  of  a lake  or  sea,  their  powers  are  usually  en- 
larged so  as  to  embrace  the  building  of  wharves  and  docks  or  levees  for 
the  benefit  of  commerce,  and  they  may  extend  also  to  the  construction  of 
roads  leading  to  it,  or  the  contributing  of  aid  towards  their  construction. 
The  number  and  variety  of  works  which  may  be  authorized,  having  a 
general  regard  to  the  welfare  of  the  city  or  of  its  people,  are  mere  mat- 
ters of  legislative  discretion.  All  of  them  require  for  their  execution 
considerable  expenditures  of  money.  Their  authorization  without  pro- 
viding the  means  for  such  expenditures  would  be  an  idle  and  futile  pro- 
ceeding. Their  authorization,  therefore,  implies  and  carries  with  it  the 
power  to  adopt  the  ordinary  means  employed  by  such  bodies  to  raise 
funds  for  their  execution,  unless  such  funds  are  otherwise  provided. 
And  the  ordinary  means  in  such  cases  is  taxation.  A municipality  with- 
out the  power  of  taxation  would  be  a body  without  life,  incapable  of  act- 
ing, and  serving  no  useful  purpose. 

“ For  the  same  reason,  when  authority  to  borrow  money  or  incur  an 
obligation  in  order  to  execute  a public  work  is  conferred  upon  a munici- 
pal corporation,  the  power  to  levy  a tax  for  its  payment  or  the  discharge 
of  the  obligation  accompanies  it;  and  this,  too,  without  any  special  men- 


tion  that  such  power  is  granted.  This  arises  from  the  fact  that  such  cor- 
porations seldom  possess — so  seldom,  indeed,  as  to  be  exceptional — any 
means  to  discharge  their  pecuniary  obligations  except  by  taxation.  ‘ It 
is,  therefore,  to  be  inferred,’  as  observed  by  this  court  in  Loan  Association 
vs.  Topeka,  (20  Wall.,  660,)  1 that  when  the  legislature  of  a State  authorizes 
a county  or  city  to  contract  a debt  by  bond,  it  intends  to  authorize  it  to 
levy  such  taxes  as  are  necessary  to  pay  the  debt,  unless  there  is  in  the 
act  itself,  or  in  some  general  statute,  a limitation  upon  the  power  of  tax- 
ation which  repels  such  an  inference.’  ” 

Iii  the  case  of  The  Pensacola  Telegraph  Company  vs. 
The  'Western  Union  Telegraph  Company  a bill  was  hied 
to  obtain  an  injunction  restraining  the  defendant,  theWest- 
ern  Union  Co.,  from  erecting,  using,  or  maintaining  a tel- 
egraph line  in  the  county  of  Escambia,  Florida,  on  the 
ground  that  by  a statute  of  the  State,  passed  in  December, 
1866,  the  complainant,  the  Pensacola  Co.,  had  acquired 
the  exclusive  right  to  erect  and  use  lines  of  telegraph  in 
that  county  for  the  period  of  twenty  years.  The  court  be- 
low denied  the  injunction  and  dismissed  the  bill,  upon  the 
ground  that  the  statute  was  in  conflict  with  the  act  of 
Congress  of  July  24th,  1866,  entitled  “ An  act  to  aid  in 
the  construction  of  telegraph  lines,  and  to  secure  to  the 
government  the  use  of  the  same  for  postal,  military, 
and  other  purposes,”  the  first  section  of  which  provides 
“that  any  telegraph  company  now  organized,  or  which 
may  hereafter  be  organized,  under  the  laws  of  any  State 
in  this  Union,  shall  have  the  right  to  construct,  main- 
tain, and  operate  lines  of  telegraph  through  and  over  any 
portion  of  the  public  domain  of  the  United  States,  over 
and  along  any  of  the  military  or  post  roads  of  the  United 
States,  which  have  been  or  may  hereafter  be  declared 
such  by  act  of  Congress,  and  over,  under,  or  across  the 
navigable  streams  or  waters  of  the  United  States:  Provided , 
That  such  lines  of  telegraph  shall  be  so  constructed  and 
maintained  as  not  to  obstruct  the  navigation  of  such  streams 
and  waters,  or  interfere  with  the  ordinary  travel  on  such 
military  or  post  roads.  And  any  of  said  companies  shall 
have  the  right  to  take  and  use  from  such  public  lands  the 
necessary  stone,  timber,  and  other  materials  for  its  posts, 
15 


226 


piers,  stations,  and  other  needful  uses  in  the  construction, 
maintenance,  and  operation  of  said  lines  of  telegraph,  and 
may  pre-empt  and  use  such  portion  of  the  unoccupied 
public  lands  subject  to  pre-emption,  through  which  its  said 
lines  of  telegraph  may  he  located,  as  maybe  necessary  for 
its  stations,  not  exceeding  forty  acres  for  each  station,  hut 
such  stations  shall  not  he  within  fifteen  miles  of  each 
other.”  * 

The  statute  of  Florida  incorporated  the  Pensacola  Tel- 
egraph Company,  which  had  been  organized  in  December 
of  the  previous  year,  and  in  terms  declared  that  it  should 
enjoy  “the  sole  and  exclusive  privilege  and  right  of  es- 
tablishing and  maintaining  lines  of  electric  telegraph  in 
the  counties  of  Escambia  and  Santa  Rosa,  either  from  dif- 
ferent points  within  said  counties,  or  connecting  with  lines 
coming  into  said  counties,  or  either  of  them,  from  other 
points  in  this  or  any  other  State.” 

Soon  after  its  organization  and  in  1866  the  company 
erected  a line  of  telegraph  from  the  city  of  Pensacola, 
through  the  county  of  Escambia,  to  the  southern  boundary 
of  Alabama,  a distance  of  forty-seven  miles,  which  has 
since  been  open  and  in  continuous  operation.  It  was  lo- 
cated, by  permission  of  the  Alabama  and  Florida  Rail- 
road Company,  along  its  line  of  railway.  After  the  charter 
was  obtained,  the  line  was  substantially  rebuilt,  and  two 
other  lines  in  the  county  were  erected  by  the  company. 

In  February,  1873,  the  Legislature  of  Florida  passed  an 
act  granting  to  the  Pensacola  and  Louisville  Railroad 
Company,  which  had  become  the  assignee  of  the  Alabama 
and  Florida  Railroad  Company,  the  right  to  construct  and 
operate  telegraph  lines  upon  its  right-of-way  from  the  bay 
of  Pensacola  to  the  junction  of  its  road  with  the  Mobile 
and  Montgomery  railroad,  and  to  connect  the  same  with 
the  lines  of  other  companies.  By  an  amendatory  act 
passed  in  the  following  year  (February,  1874),  the  rail- 
road company  was  authorized  to  construct  and  operate  the 


*14  Statutes  at  Large,  221. 


227 


lines,  not  only  along  its  road  as  then  located,  but  as  it 
might  be  thereafter  located,  and  along  connecting  roads 
in  the  county,  to  the  boundary  of  Alabama,  and  to  con- 
nect and  consolidate  them  with  other  telegraph  companies, 
and  to  sell  and  assign  the  property  appertaining  to  them, 
and  the  rights,  privileges,  and  franchises  conferred  by  the 
act;  and  it  empowered  the  assignee,  in  such  case,  to  con- 
struct and  operate  the  lines  and  to  enjoy  these  rights, 
privileges,  and  franchises. 

Under  this  amendatory  act,  and  soon  after  its  passage, 
the  railroad  company  assigned  the  rights,  privileges,  and 
franchises  thus  acquired  to  the  "Western  Union  Telegraph 
Company,  a corporation  created  under  the  laws  of  the 
State  of  New  York,  which  at  once  proceeded  to  erect  a 
line  from  the  city  of  Pensacola  to  the  southern  boundary 
of  Alabama,  along  the  identical  railway  on  which  the 
complainant’s  line  was  erected  in  1866,  and  ever  afterwards 
located,  with  the  avowed  intention  of  using  it  to  transmit 
for  compensation  messages  for  the  public  in  the  county 
and  State.  By  the  erection  and  operation  of  this  line,  the 
complainant  alleged  that  its  property  would  become  val- 
ueless, and  that  it  would  lose  the  benefits  of  the  franchises 
conferred  by  its  charter. 

The  Supreme  Court  affirmed  the  decision  of  the  circuit 
court,  dismissing  the  bill,  holding  that  the  act  of  Congress 
of  July  24,  1866,  so  far  as  it  declared  that  the  erection  of 
telegraph  lines  should,  as  against  State  interference,  be 
free  to  all  who  accepted  its  terms  and  conditions,  and  that 
a telegraph  company  of  one  State  should  not,  after  accept- 
ing them,  be  excluded  by  another  State  from  prosecuting 
its  business  within  her  jurisdiction,  was  a legitimate  regu- 
lation of  commercial  intercourse  among  the  States,  and 
appropriate  legislation  to  execute  the  powers  of  Congress 
over  the  postal  service.  And  further,  that  the  right-of-way 
which  the  act  granted  was  not  limited  to  such  military  and 
post  roads  as  were  upon  the  public  domain.  The  Chief 
Justice,  who  delivered  the  opinion  of  the  court,  said  as 
follows  : 


228 


“ It  [tlie  act  of  Congress  of  1866]  substantially  declares,  in  the  interest 
of  commerce  and  the  convenient  transmission  of  intelligence  from  place 
to  place  by  the  government  of  the  United  States  and  its  citizens,  that 
the  erection  of  telegraph  lines  shall,  so  far  as  State  interference  is  con- 
cerned, be  free  to  all  who  will  submit  to  the  conditions  imposed  by 
Congress,  and  that  corporations  organized  under  the  laws  of  one  State  for 
constructing  and  operating  telegraph  lines  shall  not  be  excluded  by  an- 
other from  prosecuting  their  business  within  its  jurisdiction,  if  they  ac- 
cept the  terms  proposed  by  the  national  government  for  this  national 
privilege.  To  this  extent,  certainly,  the  statute  is  a legitimate  regulation 
of  commercial  intercourse  among  the  States,  and  is  appropriate  legisla- 
tion to  carry  into  execution  the  powers  of  Congress  over  the  postal  ser- 
vice. It  gives  no  foreign  corporation  the  right  to  enter  upon  private 
property  without  the  consent  of  the  owner  and  erect  the  necessary  struc- 
tures for  its  business,  but  it  does  provide  that,  whenever  the  consent  of 
the  owner  is  obtained,  no  State  legislation  shall  prevent  the  occupation 
of  post  roads  for  telegraph  purposes  by  such  corporations  as  are  willing 
to  avail  themselves  of  its  privileges. 

“ It  is  insisted,  however,  that  the  statute  extends  only  to  such  military 
and  post  roads  as  are  upon  the  public  domain  ; but  this,  we,  think,  is  not 
so.  The  language  is,  ‘ Through  and  over  any  portion  of  the  public  do- 
main of  the  United  States,  over  and  along  any  of  the  military  or  post 
roads  of  the  Unit  ed  States  which  have  been  or  may  hereafter  be  declared 
such  by  act  of  Congress,  and  over,  under,  or  across  the  navigable  streams 
or  waters  of  the  United  States.’  There  is  nothing  to  indicate  an  inten- 
tion of  limiting  the  effect  of  the  words  employed,  and  they  are,  there- 
fore, to  be  given  their  natural  and  ordinary  signification.  Read  in  this 
way,  the  grant  evidently  extends  to  the  public  domain,  the  military  and 
post  roads,  and  the  navigable  waters  of  the  United  States.  These  are  all 
within  the  dominion  of  the  national  government  to  the  extent  of  the  na- 
tional powers,  and  ai'e,  therefore,  subject  to  legitimate  congressional  regu- 
lation. No  question  arises  as  to  the  authority  of  Congress  to  provide  for 
the  appropriation  of  private  property  to  the  uses  of  the  telegraph,  for  no 
such  attempt  has  been  made.  The  use  of  public  property  alone  is  granted. 
If  private  property  is  required,  it  must,  so  far  as  the  present  legislation  is 
concerned,  be  obtained  by  private  arrangement  with  its  owner.  No  com- 
pulsory proceedings  are  authorized.  State  sovereignty  under  the  Consti- 
tution is  not  interfered  with.  Only  national  privileges  are  granted.” 

From  this  decision  Judges  Field  and  Hunt  dissented, 
Judge  Field  delivering  a dissenting  opinion.  In  that 
opinion  he  said  as  follows  : 

“ There  can  be  no  serious  question  that  the  State  of  Florida  possessed 
the  absolute  right  to  confer  upon  a corporation  created  by  it  the  exclu- 
sive privilege  for  a limited  period  to  construct  and  operate  a telegraph 
line  within  its  borders.  Its  constitution,  in  existence  at  the  time,  em- 


229 


powered  the  legislature  to  grant  exclusive  privileges  and  franchises  to 
private  corporations  for  a period  not  exceeding  twenty  years.  The  ex- 
clusiveness of  a privilege  often  constitutes  the  only  inducement  for  un- 
dertakings holding  out  little  prospect  of  immediate  returns.  The  uncer- 
tainty of  the  results  of  an  enterprise  will  often  deter  capitalists,  naturally 
cautious  and  distrustful,  from  making  an  investment  without  some  as- 
surance that  in  case  the  business  become  profitable  they  shall  not  en- 
counter the  danger  of  its  destruction  or  diminution  by  competition,  it 
has,  therefore,  been  a common  practice  in  all  the  States  to  encourage  en- 
terprises having  for  their  object  the  promotion  of  the  public  good,  such 
as  the  construction  of  bridges,  turnpikes,  railroads,  and  canals,  by  grant- 
ing for  limited  periods  exclusive  privileges  in  connection  with  them. 
Such  grants,  so  far  from  being  deemed  encroachments  upon  any  rights  or 
powers  of  the  United  States,  are  held  to  constitute  contracts,  and  to  be 
within  the  protecting  clause  of  the  Constitution  prohibiting  any  impair- 
ing of  their  obligation. 

‘‘The  grant  to  the  complainant  was  invaded  by  the  subsequent  grant 
to  the  Pensacola  and  Louisville  Railroad  Company.  If  the  first  grant 
was  valid,  the  second  was  void,  according  to  all  the  decisions  of  this  court 
upon  the  power  of  a State  to  impair  its  grant  since  the  Dartmouth  Col- 
lege case.  The  court  below  did  not  hold  otherwise,  and  I do  not  under- 
stand that  a different  view  is  taken  here;  but  it  decided,  and  this  court 
sustains  the  decision,  that  the  statute  making  the  first  grant  was  void  by 
reason  of  its  conflict  with  the  act  of  Congress  of  July  24th,  1866. 

“ With  all  deference  to  my  associates,  1 cannot  see  that  the  act  of  Con- 
gress has  anything  to  do  with  the  case  before  us.  In  my  judgment,  it  has 
reference  only  to  telegraph  lines  over  and  along  military  and  post  roads 
on  the  public  domain  of  the  United  States.  The  title  of  the  act  expresses 
its  purpose,  namely,  ‘to  aid  in  the  construction  of  telegraph  lines  and  to 
secure  to  the  government  the  use  of  the  same  for  postal,  military,  and 
other  purposes.’  The  aid  conferred  was  the  grant  of  a right  of  way  over 
the  public  domain  ; the  act  does  not  propose  to  give  aid  in  any  other  way. 
Its  language  is  that  any  telegraph  company  organized  under  the  laws  of 
a State  - shall  have  the  right  to  construct,  maintain,  and  operate  lines  of 
telegraph  through  and  over  any  portion  of  the  public  domain,  over  and 
along  any  of  the  military  and  post  roads  which  have  been,  or  may  here- 
after be,  declared  such  by  act  of  Congress,  and  over  and  across  the  navi- 
gable streams  or  waters  of  the  United  States.’  The  portion  of  the  public 
domain  which  may  be  thus  used  is  designated  by  reference  to  the  mili- 
tary and  post  roads  upon  it.  Were  there  any  doubt  that  this  is  the  cor- 
rect construction  of  the  act,  the  provision  which  follows  in  the  same  sec- 
tion would  seem  to  remove  it,  namely,  that  any  of  the  said  companies 
shall  ‘have  the  right  to  take  and  use  from  such  public  lands  the  necessary 
stone,  timber,  and  other  materials  for  its  posts,  piers,  stations,  and  other 
needful  uses  in  the  construction,  maintenance,  and  operation  of  said  lines 
of  telegraph,  and  may  pre-empt  and  use  such  portion  of  the  unoccupied 


230 


public  lands,  subject  to  pre-emption,  through  which  its  said  lilies  of  tele- 
graph may  be  located,  as  may  be  necessary  for  its  stations,  not  exceeding 
forty  acres  for  each  station,  but  such  sections  shall  not  be  within  fifteen 
miles  of  each  other.’  In  the  face  of  this  language,  the  italics  of  which 
are  mine,  there  ought  not  to  be  a difference  of  opinion  as  to  the  object  of 
the  act,  or  as  to  its  construction.  The  conclusion  reached  by  the  major- 
ity of  the  court  not  only  overlooks  this  language,  but  implies  that  Con- 
gress intended  to  give  aid  to  the  telegraph  companies  of  the  country — 
those  existing  or  thereafter  to  be  created — not  merely  by  allowing  them 
to  construct  their  lines  over  and  along  post  roads  upon  the  public  lands, 
but  also  over  and  along  such  roads  within  the  States  which  are  not  on  the 
public  lands,  where  heretofore  it  has  not  been  supposed  that  it  could 
rightfully  exercise  any  power. 

“The  only  military  roads  belonging  to  the  United  States  within  the 
States  are  in  the  military  reservations  ; and  to  them  the  act  obviously 
does  not  apply.  And  there  are  no  post  roads  belonging  to  the  United 
States  within  the  States.  The  roads  upon  which  the  mails  are  carried  lay 
parties,  under  contract  with  the  government;  belong  either  to  the  States 
or  to  individuals  or  to  corporations,  and  are  declared  post  roads  only  to 
protect  the  carriers  from  being  interfered  with,  and  the  mails  from  being 
delayed  in  their  transportation,  and  the  postal  service  from  frauds.  The 
government  has  no  other  control  over  them.  It  lias  no  proprietary  inter- 
est in  them  or  along  them  to  bestow  upon  any  one.  It  cannot  use  them 
without  paying  the  tolls  chargeable  to  individuals  for  similar  uses.  It 
cannot  prevent  the  State  from  changing  or  discontinuing  them  at  its 
pleasure;  and  it  can  acquire  no  ownership  or  property  interest  in  them, 
except  in  the  way  in  which  it  may  acquire  any  other  property  in  the 
States,  namely,  by  purchase  or  by  appropriation  upon  making  just  com- 
pensation,* 

“ The  public  streets  in  some  of  our  cities  are  post  roads  under  the  dec- 
laration of  Congress;!  and  it  would  be  a strange  thing  if  telegraph  lines 
could  be  erected  by  a foreign  corporation  along  such  streets  without  the 
consent  of  the  municipal  and  State  authorities,  and,  of  course,  without 
power  on  their  part  to  regulate  its  charges  or  control  its  management. 
Yet  the  doctrine  asserted  by  the  majority  of  the  court  goes  J;o  this  length  : 
that  if  the  owners  of  the  property  along  the  streets  consent  to  the  erec- 
tion of  such  lines  by  a foreign  corporation,  the  municipality  and  the  State 
are  powerless  to  prevent  it,  although  the  exclusive  right  to  erect  them 
may  have  been  granted  by  the  State  to  a corporation  of  its  own  creation. 

“ If  by  making  a contract  with  a party  to  carry  the  mails  over  a par- 
ticular road  in  a State,  which  thus  becomes  by  act  of  Congress  for  that 
purpose  a post  road,  Congress  acquires  such  rights  with  respect  to  the 
road  that  it  can  authorize  corporations  of  other  States  to  construct  along 


* Dickey  vs.  Turnpike  Road  Co.,  7 Dana  (Ky.),  113. 
t Rev.  Stats.,  sec.  3,964. 


231 


and  over  it  a line  of  telegraph,  why  may  it  not  authorize  them  to  con- 
struct along  the  road  a railway,  or  a turnpike,  or  a canal,  or  any  other 
work  which  may  he  used  for  the  promotion  of  commerce  ? If  the  au- 
thority exists  in  the  one  case,  I cannot  see  why  it  does  not  equally  exist 
in  the  other.  And  if  Congress  can  authorize  the  corporations  of  one 
State  to  construct  telegraph  lines  and  railways  in  another  State,  it  must 
have  the  right  to  authorize  them  to  condemn  private  property  for  that 
purpose.  The  act  under  consideration  does  not,  it  is  true,  provide  for 
such  condemnation,  but  if  the  right  exist  to  authorize  the  construction 
of  the  lines,  it  cannot  be  defeated  from  the  inability  of  the  corporations 
to  acquire  the  necessary  property  by  purchase.  The  power  to  grant  im- 
plies a power  to  confer  all  the  authority  necessary  to  make  the  grant  ef- 
fectual. It  was  fora  long  time  a debated  question  whether  the  United 
States,  in  order  to  obtain  property  required  for  their  own  purposes,  could 
exercise  the  right  of  eminent  domain  within  a State.  It  has  been  decided, 
only  within  the  past  two  years,  that  the  government,  if  such  property 
cannot  be  obtained  by  purchase,  may  appropriate  it  upon  making  just 
compensation  to  the  owner,*  but  never  has  it  been  suggested  that  the 
United  States  could  enable  a corporation  of  one  State  to  condemn  prop- 
erty in  another  State,  in  order  that  it  might  transact  its  private  business 
there. 

We  are  not  called  upon  to  say  that  Congress  may  not  construct  a rail- 
road as  a post  road,  or  erect  for  postal  purposes  a telegraph  line.  It  may 
be  that  the  power  to  establish  post  roads  is  not  limited  to  designating  the 
roads  which  shall  be  used  as  postal  routes  ; a limitation  which  has  been 
asserted  by  eminent  jurists  and  statesmen.!  If  it  be  admitted  that  the 
power  embraces  also  the  construction  of  such  roads,  it  does  not  follow 
that  Congress  can  authorize  the  corporation  of  one  State  to  construct  and 
operate  a railroad  or  telegraph  line  in  another  State  for  the  transaction  of 
private  business,  or  even  to  exist  there,  without  the  permission  of  the  lat- 
ter State.  By  reason  of  its  previous  grant  to  the  complainant  Florida  was 
incompetent  to  give  such  permission  to  the  assignor  of  the  defendant,  or 
to  any  other  company,  to  construct  a telegraph  line  in  the  county  of  Es- 
cambia. The  act  of  the  State  of  February  3d,  1874,  in  the  face  of  this 
grant,  can  only  be  held  to  authorize  the  construction  of  telegraph  lines 
by  different  companies  in  other  counties.  If,  therefore,  the  defendant  has 
any  rights  in  that  county  they  are  derived  solely  from  the  act  of  Congress. 

“A  corporation  can  have  no  legal  existence  beyond  the  limits  of  the 
sovereignty  which  created  it.  In  The  Bank  of  Augusta  vs.  Earle,  it  was 
said  by  this  court  that  ‘ it  must  dwell  in  the  place  of  its  creation  and 


* Kohl  vs.  U.  S.,  1 Otto,  367. 

f Elliott’s  Debates,  edition  of  1836,  433,  487  ; Views  of  President  Mon- 
roe accompanying  his  veto  message  of  May  4th,  1822;  Views  of  Judge 
McLean  in  his  dissenting  opinion  in  the  Wheeling  Bridge  Case,  18  How., 
p.  441-2. 


232 


cannot  migrate  to  another  sovereignty.’*  And  in  Paul  vs.  Virginia  we 
added  that  ‘ the  recognition  of  its  existence  even  by  other  States,  and  the 
enforcement  of  its  contracts  made  therein,  depend  purely  upon  the  com- 
ity of  those  States,  a comity  which  is  never  extended  where  the  exist- 
ence of  the  corporation  or  the  exercise  of  its  powers  is  prejudicial  to  their 
interests  or  repugnant  to  their  policy.  Having  no  absolute  right  of  rec- 
ognition in  other  States,  but  depending  for  such  recognition  and  the  en- 
forcement of  its  contracts  upon  their  assent,  it  follows,  as  a matter  of 
course,  that  such  assent  may  be  granted  upon  such  terms  and  conditions 
as  those  States  may  think  proper  to  impose.  They  may  exclude  the  for- 
eign corporation  entirely;  they  may  restrict  its  business  to  particular 
localities,  or  they  may  exact  such  security  for  the  performance  of  its  con- 
tracts with  their  citizens  as  in  their  judgment  will  best  promote  the  pub- 
lic interest.  The  whole  matter  rests  in  their  discretion.’!  If,  therefore, 
foreign  corporations  can  exist  in  the  State  of  Florida,  and  do  business 
there  by  the  authority  of  Congress,  it  must  be,  because  Congress  can  cre- 
ate such  corporations  for  local  business, — a doctrine  to  which  I cannot 
assent,  and  which  to  my  mind  is  pregnant  with  evil  consequences. 

“In  all  that  has  been  said  of  the  importance  of  the  telegraph  as  a 
means  of  intercourse,  and  of  its  constant  use  in  commercial  transactions,  I 
fully  concur.  Similar  language  may  be  used  with  regard  to  railways; 
indeed,  of  the  two  the  railway  is  much  the  more  important  instrument 
of  commerce.  But  it  is  difficult-  to  see  how  from  this  fact  can  be. deduced 
the  right  of  Congress  to  authorize  the  corporations  of  one  State  to  enter 
within  the  borders  of  another  State  and  construct  railways  and  telegraph 
lines  in  its  different  counties  for  the  transaction  of  local  business.  The 
grant  to  the  complainant  in  no  way  interferes  with  the  power  of  Congress, 
if  it  possess  such  power,  to  construct  telegraph  lines  or  railways  for  pos- 
tal service  or  for  military  purposes,  or  with  its  power  to  regulate  com- 
merce between  the  States.  The  imputation  that  Florida  designed  by  the 
grant  to  obstruct  the  powers  of  Congress  in  these  respects,  is  not  war- 
ranted by  anything  in  her  statute.  A like  imputation,  and  with  equal 
justice,  might  be  made  against  every  State  in  the  Union  which  has  au- 
thorized the  construction  of  a railway  or  telegraph  line  in  any  of  its 
counties,  with  a grant  of  an  exclusive  right  to  operate  the  road  or  line  for  a 
limited  period.  It  is  true  the  United  States,  equally  with  their  citizens, 
may  be  obliged  in  such  cases  to  use  the  road  or  line,  but  it  has  not  here- 
tofore been  supposed  that  this  feet  impaired  the  right  of  the  State  to  make 
the  grant.  "When  the  general  government  desires  to  transact  business 
within  a State  it  necessarily  makes  use  of  the  highways  and  modes  of 
transit  provided  under  the  laws  of  the  State,  in  the  absence  of  those  of 
its  own  creation. 

“ The  position  advanced,  that  if  a corporation  be  in  any  way  engaged 
in  commerce  it  can  enter  and  do  business  in  another  State  without  the 


*13  Peters,  58S. 


t 8 Wallace,  181 


233 


latter's  consent,  is  novel  and  startling, Let  this  doctrine  he  once  es- 

tablished. and  the  greater  part  of  the  trade  and  commerce  of  every  State 
will  soon  he  carried  on  by  corporations  created  without  it.  The  business 
of  the  country  is  to  a large  extent  conducted  or  controlled  by  corpora- 
tions. and  it  may  be,  as  was  said  by  this  court  in  the  case  referred  to 
i Paul  vs.  Virginia),  ‘ of  the  highest  public  interest  that  the  number  of 
corporations  in  the  State  should  be  limited,  that  they  should  be  required 
to  give  publicity  to  their  transactions,  to  submit  their  affairs  to  proper 
examination,  to  be  subject  to  forfeiture  of  their  corporate  rights  in  case 
of  mismanagement,  and  that  their  officers  should  be  held  to  a strict  ac- 
countability for  the  manner  in  which  the  business  of  the  corporations  is 
managed,  and  be  liable  to  summary  removal.’  All  these  guards  against 
corporate  abuses  the  State  would  be  incapable  of  taking  against  a corpor- 
ation of  another  State  operating  a railway  or  a telegraph  line  within  its 
borders  under  the  permission  of  Congress,  however  extortionate  its  charges 
or  corrupt  its  management.  The  corporation  might  have  a tariff  of  rates 
and  charges  prescribed  by  its  charter,  which  would  lie  beyond  the  control 
of  the  State  ; and  thus,  by  the  authority  of  Congress,  a State  might  be 
reduced  to  the  condition  of  having  the  rates  of  charges  for  transportation 
of  persons  and  freight  and  messages  within  its  borders  regulated  by  an- 
other State.  Indeed,  it  is  easy  to  see  that  there  will  remain  little  of  value 
in  the  reserved  rights  of  the  States  if  the  doctrine  announced  in  this  case 
be  accepted  as  the  law  of  the  land. 

“ The  power  vested  in  Congress  to  regulate  commerce  ‘ among  the  sev- 
eral States  ' does  not  authorize  any  interference  with  the  commerce  which 
is  carried  on  entirely  within  a State.  ‘Comprehensive  as  the  word 
‘among’  is.’  says  Chief  Justice  Marshall,  ‘it  may  very  properly  be  re- 
stricted to  that  commerce  which  concerns  more  States  than  one,’  and  ‘the 
completely  internal  commerce  of  a State,  then,  may  be  considered  as 
reserved  for  the  State  itself.’  That  commerce  embraces  the  greater  part 
of  the  business  of  every  State.  Every  one  engaged  in  the  transportation 
of  property  or  persons,  or  in  sending  messages,  between  different  points 
within  the  State,  not  destined  to  points  beyond  it,  or  in  the  purchase 
or  sale  of  merchandise  within  its  borders,  is  engaged  in  its  commerce  ; and 
the  doctrine  that  Congress  can  authorize  foreign  corporations  to  enter 
within  its  limits  and  participate  in  this  commerce  without  the  State’s 
consent  is  utterly  subversive  of  our  system  of  local  State  government. 
State  control  in  local  matters  would  thus  be  imposible.” 

The  case  of  The  Union  Pacific  Railroad  Company  vs. 
The  United  States,  and  that  of  Gallatin  vs.  The  Central 
Pacific  Railroad  Company,  before  the  Supreme  Court  at 
the  October  term,  1878,  were  brought  to  test  the  validity 
of  the  funding  act  of  Congress  of  May  7th,  1878,  com- 
monly called  the  Thurman  act. 


234 


By  the  first  section  of  the  act  of  Congress  of  July,  1862, 
certain  persons  therein  designated  were  created  a corpora- 
tion by  the  name  of  the  Union  Pacific’  Railroad  Company, 
and  authorized  to  construct  and  operate  a continuo.us  rail- 
road and  telegraph  line  from  a designated  point  oh  the 
100th  meridian  of  longitude  west  from  Greenwich  to  the 
western  boundary  of  Nevada  Territory,  and  were  invested 
with  the  powers,  privileges,  and  immunities  necessary  for 
that  purpose,  and  with  such  as  are  usually  conferred  upon 
corporations. 

By  subsequent  provisions  of  the  act  and  the  amendatory 
act  of  1864,  three  grants  were  made  to  the  company  thus 
created:  a grant  of  a right-of-way  over  the  public  lands 
of  the  United  States  for  the  road  and  telegraph  line;  a 
grant  of  ten  alternate  sections  of  land  on  each  side  of  the 
road,  to  aid  in  its  construction  and  that  of  the  telegraph 
line;  and  a grant  of  a certain  number  of  subsidy  bonds 
of  the  United  States,  each  in  the  sum  one  thousand  dollars, 
payable  in  thirty  years,  with  semi-annual  interest — patents 
for  the  lands  and  the  bonds  to  be  issued  as  each  twenty 
consecutive  miles  of  the  road  and  telegraph  should  be 
completed. 

These  grants  were  made  upon  certain  conditions  as  to 
the  completion  of  the  road  and  telegraph  line,  their  con- 
struction and  use  by  the  government.  These  conditions 
are  expressed  in  the  sixth  section,  which  is  as  follows: 

“Sec.  6.  And  be  it  further  emoted,  That  the  grants  aforesaid  are  made 
upon  condition  that  said  company  shall  pay  said  bonds  at  maturity,  and 
shall  keep  said  railroad  and  telegraph  line  in  repair  and  use,  and  shall 
at  all  times  transmit  dispatches  over  said  telegraph  line,  and  transport 
mails,  troops,  and  munitions  of  war,  supplies,  and  public  stores  upon  said 
railroad  for  the  government  whenever  required  to  do  so  by  any  depart- 
ment thereof,  and  that  the  government  shall  at  all  times  have  the  prefer- 
ence in  the  use  of  the  same  for  all  the  purposes  aforesaid  (at  fair  and 
reasonable  rates  of  compensation,  not  to  exceed  the  amounts  paid  by 
private  parties  for  the  same  kind  of  service);  and  all  compensation  [by 
the  act  of  1864  reduced  to  one-half]  lor  services  rendered  for  the  govern- 
ment shall  be  applied  to  the  payment  of  said  bonds  and  interest  until 
the  whole  amount  is  fully  paid.  Said  company  may  also  pay  the  United 


235 


States,  wholly  or  in  part,  in  the  same  or  other  bonds,  treasury  notes,  or 
other  evidences  of  debt  against  the  United  States,  to  be  allowed  at  par; 
and  after  said  road  is  completed,  until  said  bonds  and  interest  are  paid, 
at  least  live  per  centum  of  the  net  earnings  of  said  road  shall  also  be 
annually  applied  to  the  payment  thereof.” 

Bv  the  same  act  which  incorporated  the  Union  Pacific 
Company,  the  Central  Pacific  Company,  a corporation 
existing  under  the  laws  of  the  State  of  California,  was 
authorized  to  construct  a railroad  and  telegraph  line  from 
the  Pacific  Coast,  at  or  near  San  Francisco,  or  the  naviga- 
ble waters  of  the  Sacramento  River,  to  the  eastern  bound- 
ary of  California,  upon  the  same  terms  and  conditions  in 
all  respects  as  those  contained  in  the  act  for  the  construc- 
tion of  the  road  and  telegraph  line  of  the  Union  Pacific, 
and  to  meet  and  connect  with  that  road  and  telegraph  line 
on  the  eastern  boundary  of  California,  Each  of  the  com- 
panies was  required  to  file  its  acceptance  of  the  con- 
ditions of  the  act  in  the  Department  of  the  Interior  within 
six  months  after  its  passage.  The  Central  Pacific  was  also 
authorized,  after  completing  its  road  across  the  State  of 
California,  to  continue  the  construction  of  the  road  and 
telegraph  through  the  territories  of  the  United  States. 
The  number  of  bonds  that  were  to  he  issued  to  the  com- 
pany were  sixteen  for  each  mile,  excepting  for  450  miles 
between  the  western  base  of  the  Sierra  Nevada  Mountains 
and  the  eastern  base  of  the  Rocky  Mountains,  For  150 
miles  of  that  distance  double  tine  usual  amount,  namely, 
thirty -two  bonds  a mile,  were  to  be  issued,  and  for  300 
miles  of  the  most  mountainous  and  difficult  portion  treble 
the  amount  a mile,  namely,  forty-eight,  were  to  be  issued. 
These  bonds  were  to  constitute  a first  mort^ao-e  on  the 
whole  line  of  railroad  and  telegraph,  together  with  its 
rolling-stock  and  property  of  every  kind. 

By  the  act  of  1864  the  United  States  waived  its  priority 
of  lien  and  allowed  the  companies  to  issue  their  first  mort- 
gage bonds  on  their  respective  roads  to  an  amount  not  ex- 
ceeding the  amount  of  the  bonds  of  the  United  States. 
The  act  of  1862  provided  that  in  case  the  companies  failed 


236 


to  comply  with  the  terms  and  conditions  prescribed  by  not 
completing  tbe  road  and  telegraph  line  within  a reason- 
able time,  or  not  keeping  the  same  in  repair  and  use,  Con- 
gress might  pass  an  act  to  ensure  their  speedy  completion, 
or  to  put  them  in  repair  and  use,  and  if  the  road  were  not 
completed  by  the  first  of  July,  1876,  the  whole  road  and 
property  were  to  he  forfeited  to  the  United  States. 

Its  eighteenth  section  was  as  follows  : 

“SEC.  18.  And  be  it  further  enacted,  That  whenever  it  appears  that  the 
net  earnings  of  the  entire  road  and  telegraph,  including  the  amount  al- 
lowed tor  services  rendered  for  the  United  States,  after  deducting  all  ex- 
penditures— including  repairs  and  the  furnishing,  running,  and  managing 
of  said  road — shall  exceed  ten  per  centum  upon  its  cost,  (exclusive  of  the 
five  per  centum  to  be  paid  to  the  United  States,)  Congress  may  reduce 
the  rates  of  fare  thereon,  if  unreasonable  in  amount,  and  may  fix  and 
establish  the  same  by  law.  And  the  better  to  accomplish  the  object  of 
tliis  act,  namely,  to  promote  the  public  interest  and  welfare  by  the  con- 
struction of  said  railroad  and  telegraph  line,  and  keeping  the  same  in 
working  order,  and  to  secure  to  the  government  at  all  times  (but  particu- 
larly in  time  of  war)  the  use  and  benefits  of  the  same  for  postal,  military, 
and  other  purposes,  Congress  may  at  any  time — having  due  regard  for  the 
rights  of  said  companies  named  herein — add  to,  alter,  amend,  or  repeal 
this  act.” 

The  amendatory  act  closes  with  a section  providing  that 
Congress  “ may  at  any  time  alter,  amend,  or  repeal  this 
act.” 

The  two  companies — the  Union  Pacific  and  the  Central 
Pacific — both  filed  their  acceptance  of  the  conditions  of  the 
act  with  the  Department  of  the  Interior,  and  proceeded 
to  the  construction  of  their  respective  roads.  These  were 
completed  several  years  before  the  time  limited  by  the  act, 
and  they  have  been  kept  at  all  times  since  in  repair  and 
use.  They  have  also  been  at  the  service  of  the  govern- 
ment whenever  required,  and  no  complaint  of  their  ineffi- 
ciency has  been  made. 

Soon  after  the  completion  of  the  roads  a question  arose 
between  the  companies  and  the  government,  whether 
the  companies  were  hound  to  pay  the  interest  on  the 
bonds  of  the  United  States  as  it  became  due  from  year 


237 


to  year,  or  only  at  the  maturity  of  the  bonds  at  the  end 
of  the  thirty  years,  and  was  carried  before  the  Court 
of  Claims  for  adjudication,  and  came,  on  appeal  from  its 
decision,  before  the  Supreme  Court  of  the  United  States 
at  the  October  term  of  1875.  It  was  there  held  by  the 
court  unanimously  that  the  interest  was  not  payable  by 
the  company  until  the  maturity  of  the  bonds.  Judge 
Davis  gave  the  opinion  of  the  court. — (See  United  States 
vs.  The  Union  Pacific  Railroad,  91  U.  S.,  72.) 

The  same  conclusion  was  reached  hv  the  Judiciary  Com- 
mittee of  both  Houses  of  Congress.  The  Committee  on 
the  Judiciary  of  the  Senate  consisted  at  the  time  of  Sen- 
ators Trumbull,  Stewart,  Edmunds,  Carpenter,  Conkling, 
Thurman,  aud  Rice. 

^Notwithstanding  there  was  no  complaint  against  the 
companies  that  they  had  not  complied  in  all  respects  with 
the  acts  of  Congress,  or  that  there  was  any  impairment  of 
the  value  of  their  property,  on  the  7th  of  May,  1878, 
Congress  passed  the  funding  act,  commonly  known  as  the 
“ Thurman  act.”  It  is  entitled  “An  act  to  alter  and  amend 
the  railroad  acts  of  1862  and  1864,”  giving  their  titles. 

This  act  requires  that  the  whole  amount  of  compensa- 
tion which  may  from  time  to  time  be  due  to  the  compa- 
nies for  services  rendered  for  the  government,  shall  be 
retained  by  the  United  States,  one  half  to  be  applied  to 
the  liquidation  of  the  interest  paid  by  the  United  States 
on  its  bonds,  and  the  other  half  to  he  turned  into  a sink- 
ing fund,  which  the  act  establishes,  in  the  treasury  of  the 
United  States.  The  act  requires  the  Secretary  of  the 
Treasury  to  invest  moneys  of  that  fund  in  bonds  of  the 
United  States.  It  also  provides  that  on  the  1st  of  Febru- 
ary of  each  year,  one  half  of  the  compensation  for  ser- 
vices mentioned  shall  be  credited  to  that  fund,  and  re- 
quires the  Central  Pacific  Company  to  pay  into  that  fund 
on  that  day  in  each  year  $1 ,200,000,  or  so  much  thereof 
as  may  be  necessary  to  make  the  five  per  centum  of  the  net 
earnings  payable  to  the  United  States  under  the  act  of 


1862,  and  the  whole  sum  earned  as  compensation  for  ser- 
vices, and  the  sum  thus  paid  to  amount  in  the  aggregate 
to  plenty-five  per  centum  of  the  whole  net  earnings  of  the 
company.  The  act  requires  the  Union  Pacific  Company  to 
pay  $850,000  into  the  sinking  fund  on  the  1st  day  of  Feb- 
ruary of  each  year,  or  so  much  thereof  as,  with  the  five  per 
centum  and  compensation  for  services,  and  the  amount  paid, 
shall  equal  twenty-five  per  cent,  of  its  net  earnings.  And 
the  act  declares  that  no  dividend  shall  be  voted  or  paid  to 
any  stockholder  or  stockholders  in  either  of  the  compa- 
nies, when  the  company  is  in  default  in  respect  of  the  pay- 
ment of  the  sums  required  into  the  sinking  fund,  or  in 
respect  of  the  five  per  centum  of  the  net  earnings,  or  in 
respect  of  any  interest  upon  any  debt  the  lien  of  which  is 
paramount  to  that  of  the  United  States;  and  any  officer  or 
person  who  shall  vote,  declare,  or  pay  any  stockholder  of 
said  companies  any  dividend  contrary  to  the  provisions 
of  the  act,  and  any  stockholder  who  shall  receive  any, 
shall  be  liable  to  the  United  States  for  the  amount,  and 
shall  be  deemed  guilty  of  a misdemeanor,  and,  on  convic- 
tion, shall  be  punished  by  a fine  not  exceeding  $10,000, 
and  by  imprisonment  not  exceeding  one  year. 

It  is  the  validity  of  this  act,  thus  changing  the  conditions 
and  obligations  of  tbe  companies  under  the  acts  of  1862 
and  1864,  which  was  considered  in  the  cases  mentioned. 
In  both  cases  judgments  were  given  in  the  courts  below 
as  a matter  of  form  against  tbe  companies,  and  by  them 
appeals  were  taken  to  the  Supreme  Court.  The  questions 
involved  were  there  elaborately  and  ably  argued  by  dis- 
tinguished counsel.  Messrs.  Samuel  Shellabarger  and 
Jeremiah  M.  Wilson  appearing  for  the  Union  Pacific;  Mr. 
13.  H.  Hill,  of  the  United  States  Senate,  and  Mr.  S.  W. 
Sanderson,  of  California,  appearing  for  the  Central  Pacific  ; 
the  Attorney-General,  and  Mr.  George  H.  Williams,  and 
Mr.  Edwin  13.  Smith,  the  Assistant  Attorney-General,  ap- 
pearing for  the  United  States.  The  Supreme  Court  affirmed 
the  judgment  in  both  cases,  holding  that  the  act  of  May 


239 


7th,  1878,  was  constitutional,  and  that  the  establishment 
of  the  sinking  fund  was  a reasonable  regulation  for  the  ad- 
ministration of  the  affairs  of  the  companies  and  was  war- 
ranted under  the  clauses  reserving  to  Congress  the  right  to 
alter  and  amend  the  acts  of  1862  and  1864. 

Judges  Strong,  Bradley,  and  Field  dissented  from  the 
judgment,  and  each  of  them  read  a dissenting  opinion, 
Judge  Field  confining  himself  principally  to  the  case  of 
the  Central  Pacific.  His  opinion  is  as  follows  : 

“ The  decision  [rendered]  will,  in  1113-  opinion,  tend  to  create  insecurity 
in  the  title  to  corporate  property  in  the  country.  It,  in  effect,  determines 
that  the  general  government,  in  its  dealings  with  the  Pacific  Eailroad  Com- 
panies, is  under  no  legal  obligation  to  fulfill  its  contracts,  and  that  whether 
it  shall  do  so  is  a question  of  policy  and  not  of  duty.  It  also  seems  to  me 
to  recognize  the  right  of  the  government  to  appropriate  by  legislative  de- 
cree the  earnings  of  those  companies  without  judicial  inquiry  and  deter- 
mination as  to  its  claim  to  such  earnings,  thus  sanctioning  the  exercise  of 
judicial  functions  in  its  own  cases.  And  in  respect  to  the  Central  Pacific 
Company  it  asserts  a supremacy  of  the  federal  over  the  State  government 
in  the  control  of  the  corporation  which,  in  my  judgment,  is  subversive  of 
the  rights  of  the  State.  I,  therefore,  am  constrained  to  add  some  sugges- 
tions to  those  presented  by  my  associates,  Justices  Strong  and  Bradley. 
In  what  I have  to  say  I shall  confine  myself  chiefly  to  the  case  of  the 
Central  Pacific  Company.  That  company  is  a State  corporation,  and  is  the 
successor  of  a corporation  of  the  same  name,  created  before  the  railroad 
acts  of  Congress  were  passed,  and  of  four  other  corporations  organized 
under  the  laws  of  the  State.  No  sovereign  attributes  possessed  by  the 
general  government  were  exercised  in  calling  into  existence  the  original 
company,  or  any  of  the  companies  with  which  it  is  now  consolidated. 
They  all  derived  their  powers  and  capacities  from  the  State,  and  held 
them  at  its  will. 

“ The  relation  of  the  general  government  to  the  Pacific  companies  is 
two-fold  : that  of  sovereign  in  its  own  territory,  and  that  of  contractor. 
As  sovereign,  its  power  extends  to  the  enforcement  of  such  acts  and  reg- 
ulations by  the  companies  as  will  insure,  in  the  management  of  their 
roads,  and  conduct  of  their  officers  in  its  territory,  the  safety,  convenience, 
and  comfort  of  the  public.  It  can  exercise  such  control  in  its  territory 
over  all  common  carriers  of  passengers  and  property.  As  a contractor,  it 
is  bound  by  its  engagements  equally  with  a private  individual ; it  cannot 
be  relieved  from  them  by  any  assertion  of  its  sovereign  authority. 

“ Its  relation  to  the  original  Central  Pacific  Company,  and  to  the  present 
company  as  its  successor,  in  the  construction  and  equipment  of  its  road, 
and  its  use  for  public  purposes,  was  and  is  that  of  a contractor,  and  the 


rights  and  obligations  of  both  are  to  be  measured,  as  in  the  case  of  sim- 
ilar relations  between  other  parties,  by  the  terms  and  conditions  of  the 
contract. 

“ By  the  first  section  of  the  original  railroad  act  of  Congress,  passed  in 
July,  1862,  certain  persons  therein  designated  were  created  a corporation 
by  the  name  of  the  Union  Pacific  Railroad  Company,  and  authorized  to 
construct  and  operate  a continuous  railroad  and  telegraph  line  from  a 
designated  point  on  the  100th  meridian  of  longitude  west  from  Green- 
wich to  the  eastern  boundary  of  Nevada  Territory,  and  were  invested 
with  the  powers,  privileges,  and  immunities  necessary  for  that  purpose, 
and  with  such  as  are  usually  conferred  upon  corporations. 

“ By  subsequent  provisions  of  the  act  and  the  amendatory  act  of  1864, 
three  grants  were  made  to  the  company  thus  created  : a grant  of  a right- 
of-way  over  the  public  lands  of  the  United  States  for  the  road  and  tele- 
graph line  ; a grant  of  ten  alternate  sections  of  land  on  each  side  of  the 
road,  to  aid  in  its  construction  and  that  of  the  telegraph  line;  and  a grant 
of  a certain  number  of  subsidy  bonds  of  the  United  States,  each  in  the 
sum  of  one  thousand  dollars,  payable  in  thirty  years,  with  semi-annual 
interest — patents  for  the  lands  and  the  bonds  to  be  issued  as  each  twenty 
consecutive  miles  of  the  road  and  telegraph  should  be  completed.  These 
grants  were  made  upon  certain  conditions  as  to  the  completion  of  the 
road  and  telegraph  line,  their  construction  and  use  by  the  government, 
and  their  pledge  as  security  for  the  ultimate  payment  of  the  bonds.  They 
were  the  considerations  offered  by  the  government  to  the  company  for 
the  work  which  it  undertook. 

“ By  the  act  which  thus  incorporated  the  Union  Pacific  Company,  and 
made  the  grants  mentioned,  the  United  States  proposed  to  the  Central 
Pacific  that  it  should  construct  in  like  manner  a railroad  and  a telegraph 
line  through  the  State  of  California  from  a point  near  the  Pacific  Coast  to 
its  eastern  boundary,  upon  the  same  terms  and  conditions,  and  after  com- 
pleting them  across  the  State,  to  continue  their  construction  through  the 
territories  of  the  United  States  until  they  should  meet  and  connect  with 
the  road  and  telegraph  line  of  the  Union  Pacific. 

“ They,  in  effect,  said  to  the  company,  that  if  it  would  construct  a rail- 
road and  a telegraph  line  from  the  Pacific  Ocean  eastward  to  a connection 
with  the  Union  Pacific — the  road  to  be  in  all  respects  one  of  first  class — 
and  keep  them  in  repair,  so  that  they  could  be  used  at  all  times  by  any 
department  of  the  government  for  the  transmission  of  despatches  and  the 
transportation  of  mails,  troops,  munitions  of  war,  supplies,  and  public 
stores,  at  reasonable  rates  of  compensation,  not  exceeeding  such  as  were 
charged  private  persons  for  similar  services,  and  allow  the  government  at 
all  times  the  preference  in  the  use  of  the  road  and  telegraph, — they  would 
grant  the  company  a right-of-way  over  the  public  lands  for  the  construc- 
tion of  the  road  and  telegraph  line,  and  grant  to  it  ten  alternate  sections 
of  land  on  each  side  of  the  road,  and  give  it  their  bonds,  each  for  the  sum 
of  $1,000,  payable  thirty  years  after  date,  with  semi-annual  interest,  such 


241 


bonds  to  be  issued  at  the  rate  of  sixteen,  thirty-two,  or  forty-eight  the  mile, 
according  to  the  character  of  the  country  over  which  the  road  should  be 
constructed ; and  would  issue  patents  for  the  lands,  and  the  subsidy  bonds 
as  each  twenty  consecutive  miles  of  the  road  and  telegraph  should  be  com- 
pleted in  the  manner  prescribed ; it  being  agreed  that  the  company  should 
pay  the  bonds  as  they  should  mature,  and  that  for  the  security  of  their 
payment  they  should  constitute  a second  mortgage  upon  the  whole  line 
of  the  road  and  telegraph,  and  that  one-half  of  the  compensation  earned 
for  services  to  the  government,  and,  after  the  completion  of  the  road,  live 
per  cent,  of  its  net  earnings  should  be  retained  and  applied  to  the  pay- 
ment of  the  bonds  ; and  also,  that  the  company  should  complete  the  road 
by  the  first  of  July,  1876,  and  keep  it  in  repair  and  use  thereafter,  or 
upon  failure  to  do  so,  that  the  government  might  take  possession  of  the 
road  and  complete  it,  or  keep  it  in  repair  and  use  as  the  case  might  be. 
And  they  further,  in  effect,  said  that  if  these  terms  and  conditions  were 
satisfactory,  the  company  should  file  its  written  acceptance  thereof  with 
the  Secretary  of  the  Interior,  within  six  months  thereafter ; and  that 
thereupon  there  should  be  a contract  between  them. 

“ This  proposition  of  the  government  the  Central  Pacific  accepted,  and 
tiled  its  acceptance  as  required,  and  thereupon  the  provisions  of  the  act 
became  a contract  between  it  and  the  United  States,  as  complete  and  per- 
fect as  could  be  made  by  the  most  formal  instrument.  The  United  States 
thus  came  under  obligation  to  the  company  to  make  the  grants  and  issue 
the  bonds  stipulated,  upon  the  construction  of  the  road  and  telegraph 
line  in  the  manner  prescribed.  The  corporate  capacity  of  the  company 
in  no  respect  affected  the  nature  of  the  contract,  or  made  it  in  any  par- 
ticular different  from  what  it  would  have  been  had  a natural  person  been 
one  of  the  parties.  The  company  was  not  a creature  of  the  United  States, 
and  Congress  could  neither  add  to  nor  subtract  from  its  corporate  powers. 
The  exercise  of  the  right  of  eminent  domain  allowed  in  the  Territories 
was  not  the  exercise  of  a corporate  power.  That  right  belongs  to  the 
sovereign  authority,  and  whoever  exercises  it  does  so  as  the  agent  of  that 
sovereignty.  Nor  was  its  character  as  a State  institution  changed  by  the 
fact  that  it  was  permitted  by  Congress  to  extend  its  road  through  the 
territory  of  the  United  States.  This  permission  was  no  more  than  the 
license  which  is  usually  extended  by  positive  agreement,  or  by  comity  in 
the  absence  of  such  agreement,  by  one  State  to  the  corporations  of  another 
State,  to  do  business  and  own  property  in  its  jurisdiction.  Such  license 
is  not  the  source  of  the  corporate  powers  exercised.  Insurance  companies, 
express  companies,  and,  indeed,  companies  organized  for  almost  every 
kind  of  business,  are,  by  comity,  permitted  throughout  the  United  States, 
and  generally  throughout  the  civilized  world,  to  do  business,  make  con- 
tracts, and  exercise  their  corporate  powers  in  a jurisdiction  where,  in  a 
strict  legal  sense,  they  have  no  corporate  existence.  The  Pacific  Mail 
Steamship  Company,  for  example,  to  take  an  illustration  mentioned  by 
counsel,  is  a corporation  created  under  the  laws  of  the  State  of  New  York, 
16 


242 


and,  like  the  Central  Pacific,  has  been  subsidized  by  the  United  States. 
Its  ships  visit  Central  America,  California,  Japan,  and  China,  and  in  all 
these  places  it  leases  or  owns  wharves  and  makes  and  enforces  contracts 
necessary  to  the  transaction  cf  its  business,  yet  no  one  has  ever  pretended 
or  suggested  that  it  derived  any  of  its  corporate  powers  from  the  United 
States,  or  from  the  authorities  of  any  of  the  places  named.  By  consent 
of  those  authorities,  expressed  in  terms,  or  implied  in  what  is  understood 
as  their  comity,  it  exercises  powers  derived  solely  from  the  State  of  New 
York. 

“When,  therefore,  Congress  assented  to  the  extension  into  the  territory 
of  the  United  States  of  the  road  which  the  Central  Pacific  was  authorized 
by  its  charter  to  construct  in  California,  it  was  deemed  important  for  the 
company  to  obtain  also  the  consent  and  authority  of  the  State  to  act  with- 
out its  limits  and  assume  responsibilities  not  originally  contemplated. 
Accordingly,  in  1864,  the  legislature  of  the  State  at  its  second  session 
after  the  adoption  of  the  original  railroad  act  of  Congress,  in  order  to  en- 
able the  company  to  comply  with  its  provisions  and  conditions,  author- 
ized the  company  to  construct,  maintain,  and  operate  the  road  in  the  ter- 
ritory lying  east  of  the  State,  and  invested  it  with  rights,  privileges,  and 
powers  granted  by  the  act  of  Congress,  with  the  reservation,  however, 
that  the  company  should  be  subject  to  atl  the  laics  of  the  State  concerning 
railroad  and  telegraph  lines,  except  that  messages  and  property  of  the 
United  States,  of  the  State,  and  of  the  company  should  have  priority  of 
transmission  and  transportation.  The  extent  of  the  power  which  was 
thus  reserved  we  shall  hereafter  consider.  It  is  sufficient  at  present  to 
observe  that  it  was  as  ample  and  complete  as  it  is  possible  for  one  sov- 
ereignty to  exert  over  institutions  of  its  own  creation,  and  that  its  exer- 
cise is  incompatible  with  the  control  asserted  hy  the  law  of  Congress  of 
1878,  which  has  given  rise  to  the  present  suit. 

“ The  Central  Pacific  Company  having  accepted,  as  already  stated,  the 
conditions  proffered  by  Congress,  proceeded  at  once  to  the  execution  of 
its  contract.  In  the  face  of  great  obstacles,  doubts,  and  uncertainties  its  di- 
rectors commenced  and  prosecuted  the  work,  and  within  a period  several 
years  less  than  that  prescribed,  its  telegraph  line  and  road  were  completed, 
the  latter  with  all  the  appurtenances;  of  a first-class  road,  and  were  ac- 
cepted by  the  government.  Patents  for  the  land  granted,  and  the  sub- 
sidy bonds  mentioned,  were  accordingly  issued  to  the  company.  Since 
then  the  road  and  telegraph  line  have  been  kept  in  repair  and  use  and  the 
government  has  enjoyed  all  the  privileges  in  the  transmission  of  des- 
patches over  the  telegraph,  and  in  the  transportation  of  mails,  troops, 
munitions  of  war,  supplies,  and  public  stores  over  the  road,  which  were 
stipulated.  There  has  been  no  failure  on  the  part  of  the  company  to 
comply  with  its  engagements,  nor  is  any  complaint  of  delinquency  or  ne- 
glect in  its  action  made  by  the  government.  The  road  is  more  valuable 
now  than  on  the  day  of  its  completion ; it  has  been  improved  in  its  rails, 
bridges,  cars,  depots,  turn-outs,  machine-shops,  and  all  other  appurte- 


243 


nances.  Its  earnings  have  been  constantly  increasing,  and  it  constitutes 
to-day  a far  better  security  to  the  United  States  for  the  ultimate  payment 
of  the  subsidy  bonds  than  at  any  period  since  its  completion,  and  to  the 
government  it  has  caused,  with  the  connecting  road  of  the  Union  Pacific, 
an  immense  saving  of  expense.  The  records  of  the  different  departments 
show  an  annual  saving,  as  compared  with  previous  expenditures,  in  the 
item  of  transportation  alone  of  the  mails,  troops,  and  public  stores,  of  five 
millions,  aggregating  at  this  day  over  fifty  millions  of  dollars. 

“ Whilst  the  company  was  thus  complying  in  all  respects  with  its  en- 
gagements, the  act  of  May  7,  1878,  was  passed,  altering  in  essential  par- 
ticulars the  contract  of  the  company  and  greatly  increasing  its  obligations. 
By  the  contract  only  one-half  of  the  compensation  for  transportation  for 
the  government  is  to  be  retained  and  applied  towards  the  payment  of  the 
bonds.  By  the  act  of  1878  the  whole  of  such  compensation  is  to  be  re- 
tained and  thus  applied.  By  the  contract  five  per  cent,  only  of  the  net 
earnings  of  the  road  are  to  be  paid  to  the  United  States  to  be  applied  upon 
the  subsidy  bonds.  By  the  act  of  1878  twenty-five  per  cent,  of  the  net 
earnings  are  to  be  thus  paid  and  applied.  By  the  contract  the  only  secu- 
rity which  the  government  had  for  its  subsidy  bonds  was  a second  mort- 
gage on  the  road  and  its  appurtenances  and  telegraph  line  ; and  the  com- 
pany was  allowed  to  give  a first  mortgage  as  security  for  its  own  bonds, 
issued  for  an  equal  amount.  By  the  act  of  1878  additional  security  is  re- 
quired for  the  ultimate  payment  of  its  own  bonds,  and  the  subsidy  bonds 
of  the  United  States,  by  the  creation  of  what  is  termed  a sinking  fund, 
that  is,  by  compelling  the  company  to  deposit  twelve  hundred  thousand 
dollars  a year  in  the  treasury  of  the  United  States,  to  be  held  for  such 
payment,  or  so  much  thereof  as  may  be  necessary  to  make  the  five  per 
cent,  net  earnings,  the  whole  sum  earned  as  compensation  for  services,  and 
sufficient  in  addition  to  make  the  whole  reach  twenty-five  per  cent,  of 
the  net  earnings. 

“ It  is  not  material,  in  the  view  I take  of  the  subject,  whether  the  de- 
posit of  this  large  sum  in  the  treasury  of  the  creditor  be  termed  a pay- 
ment. or  something  else.  It  is  the  exaction  from  the  company  of  money 
for  which  the  original  contract  did  not  stipulate,  which  constitutes  the 
objectionable  feature  of  the  act  of  1878.  The  act  thus  makes  a great 
change  in  the  liabilities  of  the  company.  Its  purpose,  however  disguised, 
is  to  coerce  the  payment  of  money  years  in  advance  of  the  time  prescribed 
by  the  contract.  That  such  legislation  is  beyond  the  power  of  Congress  I 
cannot  entertain  a doubt.  The  clauses  of  the  original  acts  reserving  a right 
to  Congress  to  alter  or  amend  them  do  not,  in  my  judgment,  justify  the 
legislation.  The  power  reserved  under  these  clauses  is  declared  to  be  for  a 
specific  purpose.  The  language  in  the  act  of  1862  is  as  follows  : ‘And  the 
better  to  accomplish  the  object  of  this  act,  to  promote  the  public  interest 
and  welfare  by  the  construction  of  said  railroad  and  telegraph  line,  and 
keeping  the  same  in  working  order,  and  to  secure  the  government  at  all 
times  (but  particularly  in  time  of  war)  the  use  and  benefits  of  the  same 


244 


for  postal,  military,  and  other  purposes,  Congress  may  at  any  time — hav- 
ing due  regard  for  the  rights  of  said  companies  named  herein — add  to. 
alter,  amend,  or  repeal  this  act.’ — {Sec.  18.)  The  language  of  the  amend- 
atory act  of  1864  is  more  general : ‘ That  Congress  may  at  any  time  alter, 
amend,  or  repeal  this  act.’  The  two  acts  are  to  he  read  together  ; they 
deal  with  the  same  subject ; and  are  to  he  treated  as  if  passed  at  the  same 
time. — (Prescott  vs.  Railroad  Co.,  16  Wall.,  603.)  The  limitations,  there- 
fore, imposed  upon  the  exercise  of  the  power  of  alteration  and  amendment 
in  the  act  of  1862  must  be  held  to  apply  to  the  power  reserved  in  the  act 
of  1864.  They  are  not  repealed,  either  expressly  or  impliedly,  by  any- 
thing in  the  latter  act.  If  this  be  so,  the  legislation  of  1878  can  find  no 
support  in  the  clauses.  The  conditions  upon  which  the  reserved  power 
could  be  exercised  under  them  did  not  then  exist.  The  road  and  tele- 
graph had  years  before  been  constructed,  and  always  kept  in  working 
order  ; and  the  government  has  at  all  times  been  secured  in  their  use  and 
benefits  for  postal,  military,  and  other  purposes. 

“ But  if  the  reserved  power  of  alteration  and  amendment  be  consid- 
ered as  freed  from  the  limitations  designated,  it  cannot  be  exerted  to  affect 
the  contract  so  tar  as  it  has  been  executed,  or  the  rights  vested  under  it. 
When  the  road  was  completed  in  the  manner  prescribed  and  accepted, 
the  company  became  entitled  as  of  right  to  the  land  and  subsidy  bonds 
stipulated.  The  title  to  the  land  was  perfect  on  the  issue  of  the  patents  ; 
the  title  to  the  bonds  vested  on  their  delivery.  Any  alteration  of  the  acts 
under  the  reservation  clauses,  or  their  repeal,  could  not  revoke  the  title 
to  the  land  or  recall  the  bonds  or  change  the  right  of  the  company  to 
either.  So  far  as  these  are  concerned  the  contract  was,  long  before  the 
act  of  1878,  an  executed  and  closed  transaction,  and  they  were  as  much 
beyond  the  reach  of  the  government  as  any  other  property  vested  in  pri- 
vate proprietorship.  The  right  to  hold  the  subsidy  bonds  for  the  period 
at  which  they  are  to  run  without  paying  or  advancing  money  on  them 
before  their  maturity,  except  as  originally  provided,  or  furnishing  other 
security  than  that  originally  stipulated,  was,  on  their  delivery,  as  perfect 
as  the  right  to  hold  the  title  to  the  land  patented  unencumbered  by  fu- 
ture liens  of  the  government.  Any  alteration  or  amendment  could  only 
operate  for  the  future  and  affect  subsequent  acts  of  the  company  ; it  could 
have  no  operation  upon  that  which  had  already  been  done  and  vested. 

“There  have  been  much  discussion  and  great  difference  of  opinion  on 
many  points  as  to  the  meaning  and  effect  of  a similar  reservation  in 
statutes  of  the  States,  but  on  the  point  that  it  does  not  authorize  any 
interference  with  vested  rights  all  the  authorities  concur.  Such  was 
the  language  of  Chief  Justice  Shaw  in  the  case  cited  from  the  Supreme 
Court  of  Massachusetts;  and  such  is  the  language  of  Mr.  Justice  Clifford 
in  the  cases  cited  from  this  court.  And  such  must  he  the  case  or  there 
would  be  no  safety  in  dealing  with  the  government  where  such  a clause 
is  inserted  in  its  legislation.  It  could  undo  at  pleasure  everything  done 
under  its  authority,  and  despoil  of  their  property  those  who  had  trusted 


245 


to  its  faith. — ; Essex  Co.  vs.  The  Common  wealth,  13  Gray,  253;  Miller  vs. 
The  State,  15  Wall.,  498 ; Holyoke  Co.  vs.  Lyman,  Ibicl.,  522;  see  also 
Shields  vs.  Ohio,  95  U.  S.,  324,  and  Sage  vs.  Dillard,  15  B.  Monroe,  35.) 

“ The  object  of  a reservation  of  this  kind  in  acts  of  incorporation  is  to 
insure  to  the  government  control  over  corporate  franchises,  rights,  and 
privileges  which,  in  its  sovereign  or  legislative  capacity,  it  may  call  into 
existence,  not  to  interfere  with  contracts  which  the  corporation  created 
by  it  may  make.  Such  is  the  purport  of  our  language  in  Tomlinson  vs. 
Jessup,  where  we  state  the  object  of  the  reservation  to  be  1 to  prevent  a 
grant  of  corporate  rights  and  privileges  in  a form  which  will  preclude 
legislative  interference  with  their  exercise,  if  the  public  interest  should  at 
any  time  require  such  interference,’  and  that  ‘ the  reservation  affects  the 
entire  relation  between  the  State  and  corporation,  and  places  under  legis- 
lative control  all  rights,  privileges,  and  immunities  derived  by  its  charter 
directly  from  the  State.’ — (15  Wall.,  454.)  The  same  thing  we  repeated, 
with  greater  distinctness,  in  the  case  of  The  Railroad  Company  vs.  Maine, 
where  we  said  that  by  the  reservation  the  State  retained  the  power  to 
alter  the  act  incorporating  the  company,  in  all  particulars  constituting  the 
grant  to  it  of  corporate  rights,  privileges,  ancl  immunities ; and  that  ‘the 
existence  of  the  corporation,  and  its  franchises  and  immunities,  derived, 
directly  from  the  State,  were  thus  kept  under  its  control.’  But,  we  added, 
that 1 rights  and  interests  acquired  by  the  company,  not  constituting  apart 
of  the  contract  of  incorporation,  stand  upon  a different  footing.’ — (96  U.  S., 
499.) 

“ Now,  there  was  no  grant  by  the  United  States  to  the  Central  Pacific 
Company,  of  corporate  rights,  privileges,  and  immunities.  No  attribute 
of  sovereignty  was  exercised  by  them  in  its  creation.  It  took  its  life,  and 
all  its  attributes  and  capacities,  from  the  State.  Whatever  powers,  rights, 
and  privileges  it  acquired  from  the  United  States  it  took  under  its  con- 
tract with  them  and  not  otherwise.  The  relation  between  the  parties  be- 
ing that  of  contractors,  the  rights  and  obligations  of  both,  as  already 
stated,  are  to  be  measured  by  the  terms  and  conditions  of  the  contract. 
And  when  the  government  of  the  United  States  entered  into  that  con- 
tract, it  laid  aside  its  sovereignty  and  put  itself  on  terms  of  equality  with 
its  contractor.  It  was  then  but  a civil  corporation,  as  incapable  as  the 
Central  Pacific  of  releasing  itself  from  its  obligations,  or  of  finally  deter- 
mining their  extent  and  character.  It  could  not,  as  justly  observed  by 
one  of  the  counsel  who  argued  this  case,  ‘ release  itself  and  hold  the  other 
party  to  the  contract.  It  could  not  change  its  obligations  and  hold  its 
rights  unchanged.  It  cannot  bind  itself  as  a civil  corporation,  and  loose 
itself  by  its  sovereign  legislative  power.’  This  principle  is  aptly  ex- 
pressed by  the  great  conservative  statesman,  Alexander  Hamilton,  in  his 
report  to  Congress  on  the  public  credit,  in  1795:  ‘When  a government,’ 
he  observes,  ‘ enters  into  a contract  with  an  individual,  it  deposes,  as  to 
the  matter  of  the  contract,  its  constitutional  authority,  and  exchanges 
the  character  of  legislator  for  that  of  a moral  agent,  with  the  same  rights 


246 


and  obligations  as  an  individual.  Its  promises  may  be  justly  considered 
out  of  its  power  to  legislate,  unless  in  aid  of  them.  It  is,  in  theory,  im- 
possible to  reconcile  the  two  ideas  of  a promise  which  obliges  with  a power 
to  make  a law  which  can  vary  the  effect  of  it.' — (Hamilton’s  Works,  vol.  3, 
p.  518,  519.) 

“ When,  therefore,  the  government  of  the  United  States  entered  into 
the  contract  with  the  Central  Pacific,  it  could  no  more  than  a private  cor- 
poration or  a private  individual  finally  construe  and  determine  the  extent 
of  the  company’s  rights  and  liabilities.  If  it  had  cause  of  complaint 
against  the  company,  it  could  not  undertake  itself,  by  legislative  decree, 
to  redress  the  grievance,  but  was  compelled  to  seek  redress  as  all  other 
civil  corporations  are  compelled,  through  the  judicial  tribunals.  If  the 
company  was  wasting  its  property,  of  which  no  allegation  is  made,  or 
impairing  the  security  of  the  government,  the  remedy  by  suit  was  am- 
ple. To  declare  that  one  of  two  contracting  parties  is  entitled,  under 
the  contract  between  them,  to  the  payment  of  a greater  sum  than  is  ad- 
mitted to  be  payable,  or  to  other  or  greater  security  than  that  given,  is 
not  a legislative  function.  It  is  a judicial  action;  it  is  the  exercise  of 
judicial  power — and  all  such  power,  with  respect  to  any  transaction  aris- 
ing under  the' laws  of  the  United  States,  is  vested  by  the  Constitution  in 
the  courts  of  the  country. 

“ In  the  case  of  The  Commonwealth  vs.  The  Proprietors  of  New  Bedford 
Bridge,  a corporation  of  Massachusetts,  the  supreme  court  of  that  State, 
speaking  with  reference  to  a contract  between  the  parties,  uses  this  lan- 
guage : ‘ Each  has  equal  rights  and  privileges  under  it,  and  neither  can 
interpret  its  terms  authoritatively  so  as  to  control  and  bind  the  rights  of 
the  other.  The  Commonwealth  has  no  more  authority  to  construe  the 
charter  than  the  corporation.  By  becoming  a party  to  a contract  with  its 
citizens,  the  government  divests  itself  of  its  sovereignty  in  respect  to  the 
terms  and  conditions  of  the  contract  and  its  construction  and  interpreta- 
tion, and  stands  in  the  same  position  as  a private  individual.  If  it  were 
otherwise,  the  rights  of  parties  contracting  with  the  government  would 
be  held  at  the  caprice  of  the  sovereign,  and  exposed  to  all  the  risks  aris- 
ing from  the  corrupt  or  ill-judged  use  of  misguided  power.  The  inter- 
pretation and  construction  of  contracts  when  drawn  in  question  belong 
exclusively  to  the  judicial  department  of  the  government.  The  legisla- 
ture has  no  more  power  to  construe  their  own  contracts  with  their  citi- 
zens than  those  which  individuals  make  with  each  other.  They  can  do 
neither  without  exercising  judicial  powers  which  would  be  contrary  to 
the  elementary  principles  of  our  government,  as  set  forth  in  the  Declara- 
tion of  Eights.’ — (2  Gray,  350.) 

“ In  that  case  the  charter  of  the  corporation  authorized  the  building 
of  a toll-bridge  across  a navigable  river,  with  two  suitable  draws  at  least 
thirty  feet  wide.  A subsequent  act  required  draws  to  be  made  of  a greater 
width  ; but  the  court  held  that  the  question  whether  the  draws  already 
made  were  suitable,  and  constructed  so  as  not  unreasonable  or  unnec- 


247 


essarily  to  obstruct  or  impede  public  navigation,  was  not  a question  to  be 
determined  by  the  legislature,  or  by  the  corporation,  but  by  the  courts. 
It  was  a question  which  could  not  be  authoritatively  determined  by  either 
party  so  as  to  control  and  bind  the  other,  ‘ Like  all  other  matters  in- 
volving a controversy  concerning  public  duty  and  private  rights,’  said  the 
court,  'it  is  to  be  adjusted  and  settled  in  the  regular  tribunals,  where 
questions  of  law  and  fact  are  adjudicated  on  fixed  and  established  prin- 
ciples, and  according  to  the  forms  and  usages  best  adapted  to  secure  the 
impartial  administration  of  justice.’  In  the  case  at  bar,  the  government, 
by  the  act  of  1878,  undertakes  to  decide  authoritatively  what  the  obliga- 
tions of  the  Central  Pacific  are,  and  in  effect  declares  that  if  the  direc- 
tors of  the  company  do  not  respect  its  construction,  and  obey  its  man- 
dates, founded  upon  such  construction,  they  shall  be  subject  to  fine  and 
imprisonment. 

“ The  distinction  between  a judicial  and  a legislative  act  is  well  defined. 
The  one  determines  what  the  law  is,  and  what  the  rights  of  parties  are, 
with  reference  to  transactions  already  had  ; the  other  prescribes  what  the 
law  shall  be  in  future  cases  arising  under  it.  Wherever  an  act  under- 
takes to  determine  a question  of  right  or  obligation,  or  of  property,  as  the 
foundation  upon  which  it  proceeds,  such  act  is  to  that  extent  a judicial 
one,  and  not  the  proper  exercise  of  legislative  functions.  Thus  an  act  of 
the  Legislature  of  Illinois  authorizing  the  sale  of  the  lands  of  an  intes- 
tate, to  raise  a specific  sum,  to  pay  certain  parties  their  claims  against  the 
estate  of  the  deceased  for  moneys  advanced  and  liabilities  incurred,  was 
held  unconstitutional  on  the  ground  that  it  involved  a judicial  deter- 
mination that  the  estate  was  indebted  to  those  parties  for  the  moneys  ad- 
vanced and  liabilities  incurred.  The  ascertainment  of  indebtedness  from 
one  party  to  another,  and  a direction  for  its  payment,  the  court  consid- 
ered to  be  judicial  acts  which  could  not  be  performed  by  the  legislature. — 
(3  Scam.,  238.)  So  also  an  act  of  the  Legislature  of  Tennessee  authoriz- 
ing a guardian  of  infant  heirs  to  sell  certain  lands  of  which  their  ances- 
tors died  seized,  and  directing  the  proceeds  to  be  applied  to  the  payment 
of  the  ancestor’s  debts,  was.  on  similar  grounds,  held  to  be  unconstitu- 
tional.— (Joues  vs.  Perry,  10  Yerger,  59.)  Tested  by  the  principles  thus 
illustrated  the  act  of  1878  must  be  held  in  many  ways  to  transcend  the 
legislative  power  of  Congress. 

“ I cannot  assent  to  the  doctrine  which  would  ascribe  to  the  federal 
government  a sovereign  right  to  treat  as  it  may  choose  corporations  with 
which  it  deals,  and  would  exempt  it  from  that  great  law  of  morality 
which  should  biud  all  governments,  as  it  binds  all  individuals,  to  do 
justice  and  keep  faith.  Because  it  was  deemed  important,  on  the  adop- 
tion of  the  Constitution,  in  the  light  of  what  was  known  as  tender  laws, 
appraisement  laws,  stay  laws,  and  installment  laws  of  the  States,  which 
Story  says  had  prostrated  all  private  credit  and  all  private  morals,  to  iu- 
sert  a clause  prohibiting  the  States  from  passing  any  law  impairing  the 
obligation  of  contracts,  and  no  clause  prohibiting  the  federal  government 


248 


from  like  legislation  is  found,  it  is  argued  that  no  such  prohibition  upon 
it  exists. 

“ ‘ It  is  true,’  as  I had  occasion  to  observe  in  another  case,  1 there  is  no 
provision  in  the  Constitution  forbidding  in  express  terms  such  legislation. 
And  it  is  also  true  that  there  are  express  powers  delegated  to  Congress, 
the  execution  of  which  necessarily  operates  to  impair  the  obligation  of 
contracts.  It  was  the  object  of  the  framers  of  that  instrument  to  create 
a national  government,  competent  to  represent  the  entire  country  in  its 
relations  with  foreign  nations  and  to  accomplish  by  its  legislation  measures 
of  common  interest  to  all  the  people,  which  the  several  States  in  their  in- 
dependent capacities  were  incapable  of  effecting,  or  if  capable,  the  execu- 
tion of  which  would  be  attended  with  great  difficulty  and  embarrassment. 
They,  therefore,  clothed  Congress  with  all  the  powers  essential  to  the 
successful  accomplishment  of  these  ends,  and  carefully  withheld  the 
grant  of  all  other  powers.  Some  of  the  powers  granted,  from  their  very 
nature,  interfere  in  their  execution  with  contracts  of  parties.  Thus  war 
suspends  intercourse  and  commerce  between  citizens  or  subjects  of  bellig- 
erent nations;  it  renders  during  its  continuance  the  performance  of  con- 
tracts previously  made,  unlawful.  These  incidental  consequences  were 
contemplated  in  the  grant  of  the  war  power.  So  the  regulation  of  com- 
merce and  the  imposition  of  duties  may  so  affect  the  prices  of  articles 
imported  or  manufactured  as  to  essentially  alter  the  value  of  previous 
contracts  respecting  them;  but  this  incidental  consequence  was  seen  in 
the  grant  of  the  power  over  commerce  and  duties.  There  can  be  no  valid 
objection  to  laws  passed  in  execution  of  express  powers,  that  consequences 
like  these  follow  incidentally  from  their  execution.  But  it  is  otherwise 
when  such  consequences  do  not  follow  incidentally,  but  are  directly  en- 
acted.’ 

“ ‘ The  only  express  authority  for  any  legislation  affecting  the  obligation 
of  contracts  is  found  in  the  power  to  establish  a uniform  system  of  bank- 
ruptcy, the  direct  object  of  which  is  to  release  insolvent  debtors  from 
their  contracts  upon  the  surrender  of  their  property.’ — (1:2  Wallace,  663.) 
From  this  express  grant  in  the  case  of  bankrupts  the  inference  is  deduc- 
ible  that  there  was  no  general  power  to  interfere  with  contracts.  If  such 
general  power  existed  there  could  have  been  no  occasion  for  the  delega- 
tion of  an  express  power  in  the  case  of  bankrupts.  The  argument  for  the 
general  power  from  the  absence  of  a special  prohibition  proceeds  upon  a 
misconception  of  the  nature  of  the  federal  government  as  one  of  limited 
powers.  It  can  exercise  only  such  powers  as  are  specifically  granted  or 
are  necessarily  implied.  All  other  powers,  not  prohibited  to  the  States, 
are  reserved  to  them  or  to  the  people.  As  I said  in  the  case  referred  to, 
the  doctrine  that  where  a power  is  not  expressly  forbidden  it  may  be  ex- 
ercised, would  change  the  whole  character  of  our  government.  Accord- 
ing to  the  great  commentators  on  the  Constitution,  and  the  opinions 
of  the  great  jurists,  who  have  studied  and  interpreted  its  meaning,  the 
true  doctrine  is,  that  where  a power  is  not  in  terms  granted,  and  is  not 


249 


necessary  or  proper  for  the  exercise  of  a power  thus  granted,  it  does  not 
exist.  It  would  not  be  pretended,  for  example,  had  there  been  no  amend- 
ments to  the  Constitution  as  originally  adopted,  that  Congress  could  have 
passed  a law  respecting  an  establishment  of  religion  or  prohibiting  the 
free  exercise  thereof,  or  abridging  the  freedom  of  speech,  or  the  right  of 
the  people  to  assemble  and  petition  for  a redress  of  grievances.  The 
amendments  prohibiting  the  exercise  of  any  such  power  were  adopted  in 
the  language  of  the  preamble  accompanying  them,  when  presented  to 
the  States,  ‘ in  order  to  prevent  misconception  or  abuse’  of  the  powers  of 
the  Constitution. 

“ Independent  of  these  views,  there  are  many  considerations  which 
lead  to  the  conclusion  that  the  power  to  impair  contracts,  by  direct  action 
to  that  end,  does  not  exist  with  the  general  government.  In  the  first 
place,  one  of  the  objects  of  the  Constitution,  expressed  in  its  preamble, 
was  the  establishment  of  justice,  and  what  that  meant  in  its  relations  to 
contracts  is  not  left,  as  was  justly  said  by  the  late  Chief  Justice,  in  Hep- 
burn vs.  Griswold,  to  inference  or  conjecture.  As  he  observes,  at  the 
time  the  Constitution  was  undergoing  discussion  in  the  Convention,  the 
Congress  of  the  Confederation  was  engaged  in  framing  the  ordinance  for 
the  government  of  the  Northwestern  Territory,  in  which  certain  articles 
of  compact  were  established  between  the  people  of  the  original  States  and 
the  people  of  the  territory,  for  the  purpose,  as  expressed  in  the  instru- 
ment, of  extending  the  fundamental  principles  of  civil  and  religious  lib- 
erty, upon  which  the  States,  their  laws  and  constitutions,  were  erected. 
By  that  ordinance  it  was  declared,  that  in  the  just  preservation  of  rights 
and  property,  1 no  law  ought  ever  to  be  made,  or  have  force  in  the  said 
territory,  that  shall,  in  any  manner,  interfere  with  or  affect  private  con- 
tracts or  engagements  bona  fide  and  without  fraud  previously  formed.’ 
The  same  provision,  adds  the  Chief  Justice,  found  more  condensed  ex- 
pression in  the  prohibition  upon  the  States  against  impairing  the  obliga- 
tion of  contracts,  which  has  ever  been  recognized  as  an  efficient  safeguard 
against  injustice,  and.  though  the  prohibition  is  not  applied  in  terms  to 
the  government  of  the  United  States,  he  expressed  the  opinion,  speaking 
for  himself  and  the  majority  of  the  court  at  the  time,  that  it  was  clear 
: that  those  who  framed  and  those  who  adopted  the  Constitution,  intended 
that  the  spirit  of  this  prohibition  should  pervade  the  entire  body  of  legis- 
lation, and  that  the  justice  which  the  Constitution  was  ordained  to  estab- 
lish was  not  thought  by  them  to  be  compatible  with  legislation  of  an  op- 
posite tendency.’ — (8  Wallace,  633.) 

"Similar  views  are  found  expressed  in  the  opinions  of  other  judges  of 
this  court.  In  Calder  vs.  Bull,  which  was  here  in  1798,  Mr.  Justice  Chase 
said,  that  there  were  acts  which  the  federal  and  State  legislatures  could 
not  do  without  exceeding  their  authority,  and  among  them  he  mentioned 
a law  which  punished  a citizen  for  an  innocent  act ; a law  that  destroyed 
or  impaired  the  lawful  private  contracts  of  citizens  ; a lawr  that  made  a 
man  judge  in  his  own  case ; and  a law  that  took  the  property  from  A and 


250' 


gave  it  to  B.  1 It  is  against  all  reason  and  justice,’  he  added,  ‘ for  a peo- 
ple to  entrust  a legislature  with  sucli  powers,  and,  therefore,  it  cannot  be 
presumed  that  they  have  done  it.  They  may  command  what  is  right  and 
prohibit  what  is  wrong;  but  they  cannot  change  innocence  into  guilt  or 
punish  innocence  as  a crime,  or  violate  the  right  of  an  antecedent  lawful 
private  contract,  or  the  right  of  private  property.  To  maintain  that  a 
federal  or  State  legislature  possesses  such  powers  if  they  had  not  been 
expressly  restrained,  would,  in  my  opinion,  be  a political  heresy  alto- 
gether inadmissible  in  all  free  republican  governments.’ — (3  Dallas,  388.) 

“ In  Ogden  vs.  Saunders,  which  was  before  this  court  in  1827,  Mr.  Jus- 
tice Thompson,  referring  to  the  clauses  of  the  Constitution  prohibiting 
the  State  from  passing  a bill  of  attainder,  an  ex  post  facto  law,  or  a law 
impairing  the  obligation  of  contracts,  said  : ‘ Neither  provision  can  strictly 
he  considered  as  introducing  any  new  principle,  but  only  for  greater 
security  and  safety  to  incorporate  into  this  charter  provisions  admitted 
by  all  to  be  among  the  first  principles  of  our  government.  No  State 
court  would,  I presume,  sanction  and  enforce  an  ex  post  facto  law,  if  no 
such  prohibition  was  contained  in  the  Constitution  of  the  United  States; 
so,  neither  would  retrospective  laws,  taking  away  vested  rights,  be 
enforced.  Such  laws  are  repugnant  to  those  fundamental  principles 
upon  which  every  just  system  of  laws  is  founded.’ 

“ In  the  Federalist,  Mr.  Madison  declared  that  laws  impairing  the 
obligation  of  contracts  were  contrary  to  the  first  principles  of  the  social 
compact  and  to  every  principle  of  sound  legislation  ; and  in  the  Dart- 
mouth College  case  Mr.  Webster  contended  that  acts,  which  were  there 
held  to  impair  the  obligation  of  contracts,  were  not  the  exercise  of  a 
power  properly  legislative,  as  their  object  and  effect  was  to  take  away 
vested  rights.  "To  justify  the  taking  away  of  vested  rights,’ he  said, 
‘ there  must  be  a forfeiture,  to  adjudge  upon  and  declare  which  is  the 
proper  province  of  the  judiciary.’  Surely  the  Constitution  would  have 
failed  to  establish  justice  had  it  allowed  the  exercise  of  such  a dangerous 
power  to  the  Congress  of  the  United  States. 

“ In  the  second  place,  legislation  impairing  the  obligation  of  contracts 
impinges  upon  the  provision  of  the  Constitution  which  declares  that  no 
one  shall  be  deprived  of  his  property  without  due  process  of  law;  and 
that  means  by  law  in  its  regular  course  of  administration  through  the 
courts  of  justice.  Contracts  are  property,  and  a large  portion  of  the 
wealth  of  the  country  exists  in  that  form.  Whatever  impairs  their  value 
diminishes,  therefore,  the  property  of  the  owner,  and  if  that  be  effected 
by  direct  legislative  action  operating  upon  the  contract,  forbidding  its 
enforcement  or  transfer,  or  otherwise  restricting  its  use,  the  owner  is  as 
much  deprived  of  his  property  without  due  process  of  law  as  if  the  con- 
tract were  impounded,  or  the  value  it  represents  were  in  terms  wholly  or 
partially  confiscated. 

“ In  the  case  at  bar  the  contract  with  the  Central  Pacific  is,  as  I have 
said,  changed  in  essential  particulars.  The  company  is  compelled  to  ae- 


251 


cept  it  in  its  changed  form,  and  by  legislative  decree,  without  the  inter- 
vention of  the  courts,  that  is,  without  due  process  of  law,  to  pay  out  of 
its  earnings  each  year  to  its  contractors,  the  United  States,  or  deposit  with 
them,  a sum  that  may  amount  to  twelve  hundred  thousand  dollars,  and 
this,  twenty  years  before  the  debt  to  which  it  is  to  be  applied  becomes 
due  and  payable  by  the  company.  If  this  taking  of  the  earnings  of  the 
company  and  keeping  them  from  its  use  during  these  twenty  years  to 
come  is  not  depriving  the  company  of  its  property,  it  would  be  difficult 
to  give  any  meaning  to  the  provision  of  the  Constitution.  It  will  only  be 
necessary  hereafter  to  give  to  the  seizure  of  another’s  property  or  earnings 
a new  name — to  call  it  the  creation  of  a sinking  fund,  or  the  providing 
against  the  possible  wastefulness  or  improvidence  of  the  owner — to  get 
rid  of  the  constitutional  restraint.  To  my  mind  the  evasion  of  that  clause, 
the  frittering  away  of  all  sense  and  meaning  to  it,  are  insuperable  objee-  » 
tions  to  the  legislation  of  Congress.  AY  here  contracts  are  impaired,  or 
when  operating  against  the  government  are  sought  to  be  evaded  and 
avoided  by  legislation,  a blow  is  given  to  the  security  of  all  property. 

If  the  government  will  not  keep  its  faith,  little  better  can  be  expected 
from  the  citizen.  If  contracts  are  not  observed,  no  property  will  in  the 
end  be  respected:  and  all  history  shows  that  rights  of  person  are  unsafe 
where  property  is  insecure.  Protection  to  one  goes  with  protection  to 
the  other ; and  there  can  be  neither  prosperity  nor  progress  where  this 
foundation  of  all  just  government  is  unsettled.  1 The  moment,’  said  the 
elderAdams,  ‘the  idea  is  admitted  into  society  that  property  is  not  as 
sacred  as  the  laws  of  God,  and  that  there  is  not  a force  of  law  and  public 
justice  to  protect  it,  anarchy  and  tyranny  commence.’ 

“ I am  aware  of  the  opinion  which  prevails  generally  that  the  Pacific 
railroad  corporations  have,  by  their  accumulation  wealth,  and  the  num- 
bers in  their  employ,  become  so  powerful  as  to  be  disturbing  and  danger- 
ous influences  in  the  legislation  of  the  country  ; and  that  they  should, 
therefore,  be  brought  by  stringent  measures  into  subjection  to  the  State. 

This  may  be  true  ; I do  not  say  that  it  is  not ; but  if  it  is,  it  furnishes  no 
justification  for  the  repudiation  or  evasion  of  the  contracts  made  with 
them  by  the  government.  The  law  that  protects  the  wealth  of  the  most 
powerful,  protects  also  the  earnings  of  the  most  humble;  and  the  law 
which  would  confiscate  the  property  of  the  one  would  in  the  end  take  the 
earnings  of  the  other. 

“ There  are  many  other  objections  to  the  act  of  Congress  besides  those 
I have  mentioned — each  to  my  mind  convincing — but  why  add  to  what 
has  already  been  said.  If  the  reasons  given  will  not  convince,  neither 
would  any  others  which  could  be  presented.  I will,  therefore,  refer  only 
to  the  interference  of  the  law  with  the  rights  of  the  State  of  California. 

“ The  Central  Pacific  being  a State  corporation,  the  law  creating  it  is,  by 
the  constitution  of  California,  subject  to  alteration,  amendment,  and  re- 
peal by  its  legislature  at  any  time — a power  which  the  legislature  can 
neither  abdicate  nor  transfer.  In  its  assent  given  to  the  company  to  ex- 


252 


tend  its  road  into  the  territory  of  the  United  States — the  general  govern- 
ment having  authorized  the  extension — the  legislature  reserved  the  same 
control  which  it  possesses  over  other  railroad  and  telegraph  companies 
created  by  it.  That  control  under  the  new  constitution,  goes,  as  is  claimed, 
to  the  extent  of  regulating  the  fares  and  freights  of  the  company,  thus 
limiting  its  income  or  earnings;  and  of  supervising  all  its  business,  even 
to  the  keeping  of  its  accounts,  making  disobedience  of  its  directors  to  the 
regulations  established  for  its  management  punishable  bv  line  and  im- 
prisonment ; and  the  legislature  may  impose  the  additional  penalty  of  a 
forfeiture  of  the  franchises  and  privileges  of  the  company.  Tire  law  in 
existence  when  the  corporation  was  created,  and  still  in  force,  requires  the 
creation  of  a sinking  fund  by  the  company  to  meet  its  bonds,  and  under 
it  large  sums  have  been  accumulated  for  that  purpose,  and  still  further 
sums  must  be  raised.  In  a word,  the  law  of  the  State  undertakes  to  con- 
trol and  manage  the  corporation,  in  all  particulars  required  for  the  ser- 
vice, convenience,  and  protection  of  the  public;  and  can  there  be  a doubt 
in  the  mind  of  any  one  that  over  its  own  creations  the  State  has,  within 
its  own  territory,  as  against  the  United  States,  the  superior  authority  ? 
Yet  the  power  asserted  by  the  general  government  in  the  passage  of  the 
act  of  1878  would  justify  legislation  affecting  all  the  affairs  of  the  com- 
pany, both  in  the  State  and  in  the  Territories  of  the  United  States.  It 
could  treble  the  amount  of  the  sum  to  he  annually  deposited  in  the  sink- 
ing fund  ; it  could  command  the  immediate  deposit  of  the  entire  amount 
of  the  ultimate  indebtedness  ; it  could  change  the  order  of  the  liens  held 
by  the  government  and  the  first  mortgage  bondholders ; it  could  extend 
the  lieu  of  the  government  beyond  the  property  to  the  entire  income  of 
the  company,  and,  in  fact,  does  so  by  the  act  in  question  (sec.  9)  ; it  could 
require  the  transportation  for  the  government  to  he  made  without  com- 
pensation, and  it  could  subject  the  company  to  burdens  which,  if  antici- 
pated at  the  time,  would  have  prevented  the  construction  of  the  road. 
A power  thus  vast,  once  admitted  to  exist,  might  be  exerted  to  control  the 
entire  affairs  of  the  company,  in  direct  conflict  with  the  legislation  of  the 
State ; its  exercise  would  he  a mere  matter  of  legislative  discretion  in 
Congress.  Yet  it  is  clear  that  both  governments  cannot  control  and  man- 
age the  company  in  the  same  territory,  subjecting  its  directors  to  fine  and 
imprisonment  for  disobeying  their  regulations.  Under  the  Constitution 
the  management  of  local  affairs  is  left  chiefly  to  the  States,  and  it  never 
entered  into  the  conception  of  its  framers  that  under  it  the  creations  of 
the  States  could  be  taken  from  their  control.  Certain  it  is  that  over  no 
subject  is  it  more  important  for  their  interests  that  they  should  retain  the 
management  and  direction  than  over  corporations  brought  into  existence 
by  them.  The  decision  of  the  majority  goes  a great  way — further,  it  ap- 
pears to  me,  than  any  heretofore  made  by  the  court — to  weaken  the  au- 
thority of  the  States,  in  this  respect,  as  against  the  will  of  Congress.  Ac- 
cording to  my  understanding  of  its  scope  and  reach,  the  United  States 
have  only  to  make  a contract  with  a State  corporation,  and  a loan  to  it, 


253 


to  oust  the  jurisdiction  of  the  State,  and  place  the  corporation  under  their 
direction.  It  would  seem  plain  that  if  legislation,  taking  institutions  of 
the  State  from  its  control,  can  be  sustained  by  this  court,  the  government 
will  drift  from  the  limited  and  well-guarded  system  established  by  our 
fathers  into  a centralized  and  consolidated  government.’’ 


A leading  journal  of  California  thus  speaks  of  the  in- 
vasion made  by  the  decision  of  the  court  upon  the  rights 
of  the  State  of  California,  to  which  the  dissenting  opinion 
refers  : 

"The  position  taken  by  him  [Judge  Field]  upon  the  question  of  con- 
gressional invasion  of  State  sovereignty  is  one  which  would  beyond  doubt 
have  ranged  the  framers  of  the  United  States  Constitution  upon  his  side, 
and  it  includes  a revelation  of  dangers  and  perplexities  which  sober  men 
will  do  well  to  heed,  and  which  it  behooves  every  earnest  politician  to 
study  seriously,  because  of  the  certainty  of  the  approaching  importance 
of  this  aud  similar  questions,  in  both  State  and  national  affairs.  The  ar- 
gument of  Judge  Field  in  regard  to  the  peculiar  relations  existing  be- 
tween the  Central  Pacific,  the  State,  and  Congress,  ought  indeed  to  be 
mastered  thoroughly  by  all  who  desire  to  keep  themselves  informed  con- 
cerning the  nature  of  the  movements  by  which  the  original  character  of 
the  union  between  the  States  is  being  changed,  and  a centralized  govern- 
ment is  being  gradually  erected  upon  the  wrecks  of  State  sovereignty, 
already  little  more  than  an  empty'  name. 

t-  In  the  first  place,  Judge  Field  points  out  that  the  Central  Pacific  was 
a creature  of  the  State,  and  not  of  the  United  States.  It  draws  its  pow- 
ers and  its  life  from  California,  not  from  Congress.  ‘ There  was  no  grant 
by  the  United  States  to  the  Central  Pacific  Company  of  corporate  rights, 
privileges,  and  immunities.  No  attribute  of  sovereignty'  was  exercised 
by  them  in  its  creation.  It  took  its  life  and  all  its  attributes  and  ca- 
pacities front  the  State.  Whatever  power,  rights,  and  privileges  it  ac- 
quired from  the  United  States  it  took  under  its  contract  with  them,  and 
not  otherwise.’  This  is  the  key  to  the  argument.  Here  is  a distinct 
exercise  of  State  sovereignty,  not  lapsed,  or  dormant,  or  inchoate,  but  in 
active,  present  operation.  At  every'  step  this  State  sovereignty  is  affirmed 
and  acted  upon.  It  is  made  the  basis  of  legislation.  It  is  made  the  basis 
for  radical  changes  in  the  organic  law.  The  right  of  the  State  to  deal 
with  the  corporations  it  has  created,  and  whose  charters  it  can  ‘ alter, 
amend,  or  repeal  ’ at  will,  does  not  seem  a question  concerning  which 
there  can  be  two  opinions.  And  yet  this  very  question  has  been  raised 
in  the  decision  of  the  Supreme  Court  on  the  Thurman  act,  and  not  only 
raised,  but  settled  adversely'  to  the  right  of  the  State  to  control  its  own 
creatures.  As  the  State  has  nevertheless  undertaken  to  exercise  such  con- 


254 


trol  very  vigorously,  and  as  during  the  coming  session  of  the  legislature 
that  right  must  be  still  further  exerted,  it  is  evident  that  the  importance 
of  this  whole  question  is  very  considerable.  And  now  let  us  hear  Judge 
Field  upon  this  topic  somewhat  further:  ‘The  Central  Pacific  being  a 
State  corporation,  the  law  creating  it  is,  by  the  constitution  of  Califor- 
nia, subject  to  alteration,  amendment,  and  repeal  by  its  legislature  at 
any  time — a power  which  the  legislature  can  neither  abdicate  nor  trans- 
fer. In  its  assent  given  to  the  company  to  extend  its  road  into  the  ter- 
ritory of  the  United  States — the  general  government  authorizing  the  ex- 
tension— the  legislature  reserved  the  same  control  which  it  possesses 
over  other  railroad  and  telegraph  companies  created  by  it.  That  con- 
trol, under  the  new  Constitution,  goes,  as  is  claimed,  to  the  extent  of 
regulating  the  fares  and  freights  of  the  company,  thus  limiting  its  in- 
comes or  earnings ; and  of  supervising  all  its  business,  even  to  the  kaep- 
ing  of  its  accounts,  making  disobedience  of  its  directors  to  the  regula- 
tions established  for  its  management  punishable  by  tine  and  imprison- 
ment; and  the  legislature  may  impose  the  additional  penalty  of  a for- 
feiture of  the  franchises  and  privileges  of  the  company.’ 

“ Here  are  two  distinct  and  necessarily  antagonistic  authorities  set  up, 
both  claiming  control  of  the  same  corporation.  And  it  is  perfectly  evi- 
dent that  the  assumption  by  Congress  of  the  right  to  interfere  with  a 
creation  of  the  State  involves  the  assumption  of  a right  to  carry  the  same 
interference  to  such  lengths  as  may  destroy  the  last  pretence  of  State 
sovereignty.  In  this  case  Congress  interferes  to  compel  the  payment  of 
a debt  before  it  is  due,  in  open  violation  of  a solemn  contract.  Having 
undertaken  to  perpetrate  an  act  of  such  marked  injustice  toward  the  cor- 
poration, it  is  at  least  possible  that  so  reckless  and  irresponsible  a body 
may  err  as  widely  on  the  other  side  at  some  future  time.  For  if  Con- 
gress can  supersede  the  rights  of  the  State,  it  certainly  can  ignore  the 
interests  of  the  State ; and  the  disposition  to  do  the  first  implies  no  serious 
disinclination  to  proceed  to  the  second.  Congress  in  short  can,  under  the 
ruling  of  the  court,  so  alter  the  conditions  of  the  Central  Pacific  Company 
by  imposts  and  burdens,  that  it  shall  be  disabled  either  from  meeting  its 
obligations  or  operating  its  roads  ; and  it  will  be  in  vain  for  the  State  to 
protest  against  this  legislation.  Indeed,  it  becomes  a highly  important 
question  whether,  under  this  decision,  the  ensuing  legislature  can  venture 
to  handle  the  railroad  question  at  all,  for  Congress  has  in  practice  formally 
assumed  control  of  the  subject.  As  Judge  Field  says : ‘ Under  the  Consti- 
tution the  management  of  local  affairs  is  left  chiefly  to  the  States,  and  it 
never  entered  into  the  conception  of  its  framers  that  under  it  the  creations 
of  the  States  could  be  taken  from  under  their  control.  Certain  it  is  that 
over  no  subject  is  it  more  important  for  their  interests  that  they  should 
retain  the  management  and  direction  than  over  corporations  brought  into 
existence  by  them.  The  decision  of  the  majority  goes  a great  way — 
further,  it  appears  to  me,  than  any  heretofore  made  by  the  court — to 
weaken  the  authority  of  the  States,  in  this  respect,  as  against  the  will 


of  Congress.  According  to  my  understanding  of  its  scope  and  reach, 
the  United  States  has  only  to  make  a contract  with  a State  corporation 
and  a loan  to  it,  to  oust  the  jurisdiction  of  the  State  and  place  the  cor- 
poration under  their  their  direction.’  It  is  scarcely  possible  to  escape 
from  this  conclusion,  or  to  perceive  where  the  right  of  congressional  in- 
terference can  be  checked,  after  going  so  far.  Nor  is  this  the  only  serious 
view  of  the  matter  imposed  on  the  State.  For  what  Congress  has 
done  is  practically  to  undertake  the  management  of  the  railroads  of  Cal- 
ifornia, and  the  conflict  of  authority  here  decided  in  favor  of  Congress  has 
implications  which  will  not  improbably  cause  great  embarrassment  in  the 
near  future.  The  Supreme  Court  says  that  Congress  has  the  right  to  alter, 
amend,  or  repeal  State  charters.  It  does  not  make  this  claim  in  terms, 
but  this  is  the  actual  outcome  of  its  definition  of  State  authority.  The 
State,  therefore,  is  thrust  aside,  and  can  no  longer  control  the  corporations 
it  has  endowed  with  life  and  functions.  It  cannot  hope  to  exercise  sover- 
eignty over  agencies  which  are  already  claimed  by  a higher  jurisdiction. 
It  is  clearly  impossible  that  the  corporations  concerned  can  pay  allegiance 
equally  to  the  State  and  to  Congress.  The  mere  suggestion  of  such  a 
divided  or  duplicated  sovereignty  must  be  fatal  to  the  financial  standing 
of  the  enterprise  sp  fixed  between  the  upper  and  the  nether  millstone. 
Since  either  power  may  ruin  the  corporation,  and  since  both  powers  claim 
the  right  to  confiscate  its  property  for  disobedience  of  orders,  the  situa- 
tion is  sufficiently  difficult. The  powers  of  the  State  are  certainly 

circumscribed  and  diminished  very  seriously  by  this  decision,  and,  in  the 
words  of  Judge  Field,  ‘ It  would  seem  plain  that  if  legislation,  taking  in- 
stitutions of  the  State  from  its  control,  can  be  sustained  by  this  court, 
the  government  will  drift  from  the  limited  and  well-guarded  system  es- 
tablished by  our  fathers,  into  a centralized  and  consolidated  govern- 
ment! If  this  is  States  rights  doctrine,  it  is  a kind  of  States  rights  doc- 
trine which  the  best  friends  of  republican  government  ought  to  subscribe 
to,  for  it  is  founded  upon  principles  the  neglect  or  abandonment  of  which 
must  destroy  the  firmest  supports  of  popular  liberty,  and  prepare  the  way 
for  the  advent  of  a centralized  despotism.” 

The  Thurman  act,  besides  being  open  to  the  objections 
thus  stated,  operates  with  special  hardship  upon  the  people 
of  the  Pacific  Coast,  as  the  increased  charges  for  transpor- 
tation which  the  Central  Pacific  will  he  required  to  make 
to  meet  the  annual  payment  into  the  treasury  of  the 
United  States  of  the  sum  of  $1,200,000  many  years  before 
it  is  due,  will  fall  principally  upon  them.  This  is  a cir- 
cumstance which  seems  to  have  escaped  the  attention  of 
the  advocates  of  the  measure. 


256 


Other  Cases. 

The  opinions  from  which  the  quotations  above  are  made 
have  attracted  more  general  attention  than  any  others  writ- 
ten by  Judge  Field,  yet  they  constitute  a very  small  por- 
tion of  his  labors  in  the  Supreme  Court.  His  career  on  the 
bench  covers  many  years,  and  in  a large  number  of  cases, 
of  great  importance,  he  has  been  called  upon  either  to  speak 
for  the  court  or  to  express  bis  dissent  from  its  views.  The 
questions  involved  in  these  cases  have  been  of  infinite 
variety,  as  one  pay  suppose  from  the  multitude  of  subjects 
upon  which  litigation  can  arise  in  the  federal  courts.  It 
would  occupy  many  pages  to  give  an  intelligent  statement 
of  them.  They  relate  to  many  matters  of  a public  charac- 
ter, as  well  as  those  of  mere  private  concern ; to  treaties 
and  international  disputes;  to  foreign  commerce  and  com- 
merce between  the  States;  to  the  power  of 'taxation  of  the 
States  and  of  the  general  government,  and  the  limits  upon 
both,  as  affected  by  contract  and  residence;  to  the  public 
lands  of  the  United  States  and  the  cessions  made  bj^  Congress 
to  the  different  States,  and  to  public  institutions;  to  the  law 
governing  the  right  to  the  use  of  water  by  miners  and 
settlers  on  the  public  lands;  to  the  jurisdiction  of  the 
admiralty;  to  the  debts  of  cities,  counties,  and  States;  to 
corporations  of  every  kind,  but  especially  to  railroad  cor- 
porations and  grants  to  them;  to  subjects  of  prize  and  of 
revenue;  to  acts  of  the  military  and  naval  forces;  and  to 
a great  number  of  other  matters  arising  in  a highly  civil- 
ized community  having  commercial  and  diplomatic  rela- 
tions with  the  rest  of  the  world. 

The  following  are  some  of  the  cases  : 

The  Moses  Taylor,  4 Wallace,  411. 

The  Siren,  7 Wallace,  152. 

The  Iron-clad  Atlanta,  3 Wallace,  425. 

The  Daniel  Ball,  10  Wallace,  557. 

Welton  vs.  State  of  Missouri,  1 Otto,  275. 

Sherlock  vs.  Ailing,  3 Otto,  99. 


State  Tax  on  Foreign -held  Bonds,  15  Wallace,  300. 
Low  vs.  Austin,  13  Wallace,  29. 

Tarble’s  Case,  13  Wallace,  397. 

Trebilcock  vs.  Wilson,  12  Wallace,  687. 

Carlisle  vs.  United  States,  16  Wallace,  147. 

Horn  vs.  Lockhart,  17  Wallace,  570. 

Boyd  vs.  Alabama,  4 Otto,  645. 

Xew  Orleans  vs.  Clark,  5 Otto,  644. 

United  States  vs.  Fox,  5 Otto,  670. 

Railroad  Co.  vs.  Whitton,  13  Wallace,  270. 

Morgan  vs.  Louisiana,  3 Otto,  217. 

Chamberlain  vs.  St.  Paul  & Sioux  City  R.  R.  Co.,  2 Otto, 
299. 

Farnsworth  vs.  Minnesota  & Pacific  R.  R.  Co.,  2 Otto,  49. 
Clark  vs.  Iowa  City,  20  Wallace,  583. 

Weber  vs.  The  board  of  Harbor  Commissioners,  18 
Wallace,  57. 

Telegraph  Co.  vs.  Davenport,  7 Otto,  369. 

The  Xitro-Glycerine  Case,  15  Wallace,  524. 

The  Confederate  Xote  Case,  19  Wallace,  548. 

Boom  vs.  Patterson,  8 Otto,  403. 

Cromwell  vs.  County  of  Sac,  4 Otto,  351. 

Cromwell  vs.  County  of  Sac,  6 Otto,  51. 

Russell  vs.  Place,  4 Otto,  606. 

Bradley  vs.  Fisher,  13  Wallace,  335. 

Ex-parte  Robinson,  19  Wallace,  505. 

Atchison  vs.  Peterson,  20  Wallace,  507. 

Basey  vs.  Gallagher,  lb.,  670. 

Jennison  vs.  Kirk,  8 Otto,  453. 

Beard  vs.  Federy,  3 Wallace,  478. 

Hornsby  vs.  United  States,  10  Wallace,  224. 

Gibson  vs.  Chouteau,  13  Wallace,  92. 

Henshaw  vs.  Bissell,  18  Wallace,  255. 

Shulenberg  vs.  ILarriman,  21  Wallace,  44. 

Langdeau  vs.  Hanes,  21  Wallace,  521. 

The  Yosemite  Valley  Case,  15  Wallace,  77. 

Shepley  vs.  Cowan,  1 Otto,  330. 

17 


258 


Beecher  vs.  Wetherby,  5 Otto,  517. 

G-risar  vs.  McDowell,  6 Wallace,  363. 

Stark  vs.  Starrs,  6 Wallace,  402. 

Galpin  vs.  Page,  18  Wallace,  350. 

Pennoyer  vs.  Neff,  5 Otto,  714. 

Windsor  vs.  McVeigh,  3 Otto,  274. 

The  writing  of  opinions  is  but  a small  part  of  the  labors 
of  a judge  of  the  Supreme  Court.  He  is  obliged  to  study 
and  master  every  case  which  comes  before  the  court  and 
give  his  judgment  upon  it.  About  three  hundred  cases  are 
thus  considered  by  him  every  session,  which  usually  lasts 
seven  months.  Some  of  the  cases  are  decided  without 
written  opinions  being  given,  some  by  a divided  court, 
and  those  in  which  opinions  are  written  are  distributed 
among  nine  judges.  The  great  labor  of  each  judge  con- 
sists in  mastering  the  cases  before  the  court  so  as  to  he  able 
to  give  an  intelligent  judgment. 


259 


IS’OTE. 

The  preceding  pages  were  printed  a year  ago,  but  tlieir 
publication  was  afterwards  abandoned.  Since  then  many 
friends  of  Judge  Field  in  California  have  expressed  a de- 
sire that  some  account  of  other  decisions  of  his  should  be 
added,  and  the  whole  published  in  a pamphlet  form.  The 
other  decisions  particularly  mentioned  are  those  relating  to 
inter-state  commerce,  taxation  by  the  general  and  State 
governments,  the  trust  character  of  directors  of  corpora- 
tions, the  use  of  running  waters  on  the  public  lands,  and 
various  subjects  of  interest  arising  in  the  Circuit  Court 
of  the  United  States  for  California,  such  as  the  Pueblo  of 
San  Francisco  and  legislation  of  the  State  against  the 
Chinese.  In  compliance  with  this  desire  the  following 
pages  have  been  prepared.  To  them  is  added  a notice  of 
his  action  in  the  Electoral  Commission  of  1876,  of  which 
he  was  a member. 

June,  1881. 


Ixter-State  Commerce.  — Cases  relating  to  this 
subject. 

The  Constitution  of  the  United  States  vests  in  Congress 
the  power  “ to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes 
and  no  provision  of  that  instrument  is  of  more  importance, 
or  has  been  the  subject  of  greater  discussion.  The  mean- 
ing of  the  term  commerce,  and  how  far  the  grant  of  power 
to  regulate  it  is  exclusive  of  State  interference,  how  far,  if 
at  all,  it  is  concurrent  with  the  authority  of  the  State,  and 
what  is  the  effect  of  non-action  by  the  general  government 
with  respect  to  any  particular  subject  of  commerce,  have 
all  been  the  occasion  of  earnest  discussion  and  of  wide 
18 


260 


differences  of  opinion.  The  earlier  judges  of  the  Supreme 
Court  disagreed  in  their  views.  It  is  only  of  late  years 
that  there  has  been  any  concurrence  on  the  subject  among 
the  members  of  that  Court.  Important  opinions  leading 
to  this  uniformity  have  been  rendered  by  nearly  all  of 
the  judges.  It  is  the  object  of  this  compilation  to  refer 
only  to  those  delivered  by  Judge  Field. 

In  Welton  vs.  The  State  of  Missouri,  (1  Otto,  275,)  the 
Court,  at  its  October  term  of  1875,  was  called  upon  to  con- 
sider the  validity  of  a statute  of  Missouri  discriminating  in 
favor  of  goods,  wares,  and  merchandise  which  were  the 
growth,  product,  or  manufacture  of  the  State,  and  against 
those  which  were  the  growth,  product,  or  manufacture  of 
other  States  or  countries,  in  the  conditions  upon  which 
their  sale  could  be  made  by  traveling  dealers.  One  Wel- 
ton was  a dealer  in  sewing  machines  which  were  manu- 
factored  without  the  State  of  Missouri,  and  went  from 
place  to  place  in  the  State  selling  them  without  a license 
for  that  purpose.  For  this  offence  he  was  indicted  and 
convicted  in  one  of  the  Circuit  Courts  of  the  State,  and 
was  sentenced  to  pay  a tine  of  fifty  dollars,  and  to  be  com- 
mitted until  the  same  was  paid.  On  appeal  to  the  Su- 
preme Court  of  the  State  the  judgment  was  affirmed. 

The  statute  under  which  the  conviction  was  had  declared 
that  whoever  dealt  in  the  sale  of  goods,  wares,  or  mer- 
chandise, except  books,  charts,  maps,  and  stationery,  which 
were  not  the  growth,  produce,  or  manufacture  of  the  State, 
by  going  from  place  to  place  to  sell  the  same,  should  be 
deemed  a pedlar;  and  then  enacted  that  no  person  should 
deal  as  a pedlar  without  a license,  and  prescribed  the  rates 
of  charge  for  the  licenses,  these  varying  according  to  the 
manner  in  which  the  business  was  conducted,  whether  by 
the  party  carrying  the  goods  himself  on  foot,  or  by  the 
use  of  beasts  of  burden,  or  by  carts  or  other  land  carriage, 
or  by  boats  or  other  river  vessels.  Penalties  were  im- 
posed for  dealing  without  the  license  prescribed.  Flo  li- 
cense was  required  for  selling  in  a similar  way — by  going 


201 


from  place  to  place  in  the  State — goods  which  were  the 
growth,  product,  or  manufacture  of  the  State. 

The  license  charge  exacted  was  sought  to  he  maintained 
as  a tax  upon  a calling.  It  was  held  to  be  such  a tax  by 
the  Supreme  Court  of  the  State;  a calling,  said  the  Court, 
which  was  limited  to  the  sale  of  merchandise  not  the 
growth  or  product  of  the  State.  To  this  view  the  Supreme 
Court  of  the  United  States,  speaking  through  Judge  Field, 
said  : 

" The  general  power  of  the  State  to  impose  taxes  in  the  way  of  licenses 
upon  all  pursuits  and  occupations  within  its  limits  is  admitted,  hut  like 
all  other  powers  must  be  exercised  in  subordination  to  the  requirements 
of  the  federal  Constitution.  'Where  the  business  or  occupation  consists 
in  the  sale  of  goods,  the  license  tax  required  for  its  pursuit  is  in- effect  a 
tax  upon  the  goods  themselves.  If  such  a tax  be  within  the  power  of  the 
State  to  levy,  it  matters  not  whether  it  be  raised  directly  from  the  goods, 
or  indirectly  from  them  through  the  license  to  the  dealer.  But  if  such 
tax  conflict  with  any  power  vested  in  Congress  by  the  Constitution  of 
the  United  States,  it  will  not  be  any  the  less  invalid  because  enforced 
through  the  form  of  a personal  license. 

“ In  the  case  of  Brown  vs.  Maryland  * the  question  arose  whether  an 
act  of  the  Legislature  of  Maryland  requiring  importers  of  foreign  goods 
to  pay  the  State  a license  tax  before  selling  them  in  the  form  and  condi- 
tion in  which  they  were  imported,  was  valid  and  constitutional.  It  was 
contended  that  the  tax  was  not  imposed  on  the  importation  of  foreign 
goods,  but  upon  the  trade  and  occupation  of  selling  such  goods  by  whole- 
sale after  they  were  imported.  It  was  a tax.  said  the  counsel,  upon  the 
profession  or  trade  of  the  party  when  that  trade  was  carried  on  within 
the  State,  and  was  laid  upon  the  same  principle  as  the  usual  taxes  upon 
retailers,  or  inn-keepers,  or  hawkers  and  pedlars,  or  upon  any  other  trade 
exercised  within  the  State.  But  the  Court  in  its  decision  replied  that  it 
was  impossible  to  conceal  the  fact  that  this  mode  of  taxation  was  only 
varying  the  form  without  varying  the  substance,  that  a tax  on  the  occu- 
pation of  an  importer  was  a tax  on  importation,  and  must  add  to  the 
price  of  the  article  aud  be  paid  by  the  consumer  or  by  the  importer  him- 
self in  like  manner  as  a direct  duty  on  the  article  itself.  Treating  the 
exaction  of  the  license  tax  from  the  importer  as  a tax  on  the  goods  im- 
ported, the  Court  held  that  the  act  of  Maryland  was  in  conflict  with  the 
Constitution;  with  the  clause  prohibiting  a State,  without  the  consent 
of  Congress,  from  laying  any  impost  or  duty  on  imports  or  exports,  and 
with  the  clause  investing  Congress  with  the  power  to  regulate  commerce 
with  foreign  nations. 


* 12  Wheaton,  425,  444. 


262 

“So,  in  like  manner,  the  license  tax  exacted  by  the  State  of  Missouri 
from  dealers  in  goods  which  are  not  the  product  or  manufacture  of  the 
State,  before  they  can  be  sold  from  place  to  place  within  the  State,  must 
be  regarded  as  a tax  upon  such  goods  themselves.  And  the  question 
presented  is,  whether  legislation  thus  discriminating  against  the  products 
of  other  States  in  the  conditions  of  their  sale  by  a certain  class  of  dealers 
is  valid  under  the  Constitution  of  the  United  States.  It  was  contended 
in  the  State  Courts,  and  it  is  urged  here,  that  this  legislation  violates  that 
clause  of  the  Constitution  which  declares  that  Congress  shall  have  the 
power  to  regulate  commerce  with  foreign  nations  and  among  the  several 
States.  The  power  to  regulate  conferred  by  that  clause  upon  Congress, 
is  one  without  limitation ; and  to  regulate  commerce  is  to  prescribe  rules 
by  which  it  shall  be  governed,  that  is,  the  conditions  upon  which  it  shall 
be  conducted  ; to  determine  how  far  it  shall  be  free  and  untrammeled  ; 
how  far  it  shall  be  burdened  by  duties  and  imposts,  and  how  far  it  shall 
be  prohibited. 

“ Commerce  is  a term  of  the  largest  import ; it  comprehends  intercourse 
for  the  purposes  of  trade  in  any  and  all  its  forms,  including  the  trans- 
portation, purchase,  sale,  and  exchange  of  commodities  between  the  citi- 
zens of  our  country  and  the  citizens  or  subjects  of  other  countries,  and 
between  the  citizens  of  different  States.  The  power  to  regulate  it  em- 
braces all  the  instruments  by  which  such  commerce  may  be  conducted. 
So  far  as  some  of  these  instruments  are  concerned,  and  some  subjects 
which  are  local  in  their  operation,  it  has  been  held  that  the  States  may 
provide  regulations  until  Congress  acts  with  reference  to  them.  But 
where  the  subject  to  which  the  power  applies  is  national  in  its  character, 
or  of  such  a nature  as  to  admit  of  uniformity  of  regulation,  the  power  is 
exclusive  of  all  State  authority, 

“ It  will  not  be  denied  that  that  portion  of  commerce  with  foreign 
countries  and  between  the  States,  which  consists  in  the  transportation 
and  exchange  of  commodities,  is  of  national  importance',  and  admits  and 
requires  uniformity  of  regulation.  The  very  object  of  investing  this 
power  in  the  general  government  was  to  insure  this  uniformity  against 
discriminating  State  legislation.  The  depressed  condition  of  commerce 
and  the  obstacles  to  its  growth  previous  to  the  adoption  of  the  Constitu- 
tion, from  the  want  of  some  single  controlling  authority,  has  been  fre- 
quently referred  to  by  this  Court  in  commenting  upon  the  power  in 
question.  ‘ It  was  regulated,’  says  Chief  Justice  Marshall,  in  delivering 
the  opinion  in  Brown  vs.  Maryland,  ‘ by  foreign  nations  with  a single 
view  to  their  own  interests,  and  our  disunited  efforts  to  counteract  their 
restrictions  were  rendered  impotent  by  want  of  combination.  Congress, 
indeed,  possessed  the  power  of  making  treaties,  but  the  inability  of  the 
Federal  Government  to  enforce  them  became  so  apparent  as  to  render 
that  power  in  a great  degree  useless.  Those  who  felt  the  injury  arising 
from  this  state  of  things,  and  those  who  were  capable  of  estimating  the 
influence  of  commerce  on  the  prosperity  of  nations,  perceived  the  neces- 


263 


sity  of  giving  the  control  over  this  important  subject  to  a single  govern- 
ment. It  may  be  doubtful  whether  any  of  the  evils  proceeding  from  the 
feebleness  of  the  Federal  Government  contributed  more  to  that  great  rev- 
olution which  introduced  the  present  system,  than  the  deep  and  general 
conviction  that  commerce  ought  to  be  regulated  by  Congress.’ 

“The  power  which  insures  uniformity  of  commercial  regulation  must 
cover  the  property  which  is  transported  as  an  article  of  commerce  from 
hostile  or  interfering  legislation  until  it  has  mingled  with  and  become  a 
part  of  the  general  property  of  the  country  and  subjected  like  it  to  sim- 
ilar protection,  and  to  no  greater  burdens.  If  at  any  time  before  it  has 
thus  become  incorporated  into  the  mass  of  property  of  the  State  or  na- 
tion, it  can  be  subjected  to  any  restrictions  by  State  legislation,  the  ob- 
ject of  investing  the  control  in  Congress  may  be  entirely  defeated.  If 
Missouri  can  require  a license  tax  for  the  sale  by  traveling  dealers  of 
goods  which  are  the  growth,  product,  or  manufacture  of  other  States  or 
countries,  it  may  require  such  license  tax  as  a condition  of  their  sale  from 
ordinary  merchants,  and  the  amount  of  the  tax  will  be  a matter  resting 
exclusively  in  its  discretion. 

“ The  power  of  the  State  to  exact  a license  tax  of  any  amount  being  ad- 
mitted, no  authority  would  remain  in  the  United  States  or  in  this  Court 
to  control  its  action,  however  unreasonable  or  oppressive.  Imposts  oper- 
ating as  an  absolute  exclusion  of  the  goods  would  be  possible,  and  all  the 
evils  of  discriminating  State  legislation,  favorable  to  the  interests  of  one 
State  and  injurious  to  the  interests  of  other  States  and  countries,  which 
existed  previous  to  the  adoption  of  the  Constitution,  might  follow,  and 
the  experience  of  the  last  fifteen  years  shows  would  follow  from  the  ac- 
tion of  some  of  the  States. 

“There  is  a difficulty,  it  is  true,  in  all  cases  of  this  character,  in  draw- 
ing the  line  precisely  where  the  commercial  power  of  Congress  ends  and 
the  power  of  the  State  begins.  A similar  difficulty  was  felt  by  this  Court 
in  Brown  vs.  Maryland,  in  drawing  the  line  of  distinction  between  the 
restriction  upon  the  power  of  the  States  to  lay  a duty  on  imports,  and 
their  acknowledged  power  to  tax  persons  and  property,  but  the  Court 
observed  that  the  two,  though  quite  distinguishable  when  they  do 
not  approach  each  other,  may  yet,  like  the  intervening  colors  between 
white  and  black,  approach  so  nearly  as  to  perplex  the  understanding,  as 
colors  perplex  the  vision  in  marking  the  distinction  between  them,  but 
that,  as  the  distinction  exists,  it  must  be  marked  as  the  cases  arise.  And 
the  Court,  after  observing  that  it  might  be  premature  to  state  any  rule 
as  being  universal  in  its  application,  held  that  when  the  importer  had  so 
acted  upon  the  thing  imported  that  it  had  become  incorporated  and 
mixed  up  with  the  mass  of  property  in  the  country,  it  had  lost  its  dis- 
tinctive character  as  an  import,  and  become  subject  to  the  taxing  power 
of  the  State,  but  that  while  remaining  the  property  of  the  importer,  in 
his  warehouse  in  the  original  form  and  package  in  which  it  was  im- 
ported, the  tax  upon  it  was  plainly  a duty  on  imports,  prohibited  by  the 
Constitution. 


264 


“ Following  the  guarded  language  of  the  Court  in  that  case  we  observe 
here,  as  was  observed  there,  that  it  would  be  premature  to  state  any  rule 
which  would  be  universal  in  its  application  to  determine  when  the  com- 
mercial power  of  the  Federal  Government  over  a commodity  has  ceased 
and  the  power  of  the  State  has  commenced.  It  is  sufficient  to  hold  now 
that  the  commercial  power  continues  until  the  commodity  has  ceased  to 
be  the  subject  of  discriminating  legislation  by  reason  of  its  foreign  char- 
acter. That  power  protects  it,  even  after  it  has  entered  the  State,  from 
any  burden  imposed  by  reason  of  its  foreign  origin.  The  act  of  Missouri 
encroaches  upon  this  power  in  this  respect,  and  is,  therefore,  in  our  judg- 
ment, unconstitutional  and  void. 

“ The  tact  that  Congress  has  not  seen  fit  to  prescribe  any  specific  rules  to 
govern  inter-state  commerce  does  not  affect  the  question.  Its  inaction 
on  this  subject,  when  considered  with  reference  to  its  legislation  with  re- 
spect to  foreign  commerce,  is  equivalent  to  a declaration  that  inter-state 
commerce  shall  be  free  and  untrammeled.  As  the  main  object  of  that 
commerce  is  the  sale  and  exchange  of  commodities,  the  policy  thus  es- 
tablished would  be  defeated  by  discriminating  legislation  like  that  of 
Missouri.” 

The  doctrine  of  this  case  has  been  approved  in  Tiernan 
vs.  Rinker  (12  Otto,  123);  and  in  Webb®  vs.  State  of 
Virginia  (13  Id.),  in  both  of  which  cases  Judge  Field  de- 
livered the  opinion  of  the  Court.  In  the  first  of  these 
the  Court  said,  that  the  doctrine  had  never  been  questioned 
but  had  been  uniformly  recognized  and  followed,  and  ex- 
presses now  its  “settled  judgment.”  In  the  second  one, 
which  involved  the  consideration  of  the  validity  of  a li- 
cense tax  imposed  under  a statute  of  Virginia,  discriminat- 
ing in  favor  of  resident  manufacturers  and  against  manu- 
facturers  of  other  States,  the  Court,  in  holding  the  law  in- 
valid said,  that  “ commerce  among  the  States  in  any  com- 
modity can  only  be  free  when  the  commodity  is  exempted 
from  all  disci  iminating  regulations  and  burdens  imposed 
by  local  atuhority  by  reason  of  its  foreign  growth  or  manu- 
facture.” 

In  the  subsequent  case  of  Sherlock  vs.  Ailing,  (3  Otto, 
99,)  the  Court  was  called  upon  to  consider  the  validity  of 
State  legislation  not  directed  against  foreign  or  inter-state 
commerce  or  any  of  its  regulations,  but  indirectly  and 
remotely  affecting  persons  engaged  in  it.  In  Decern- 


265 


ber,  1858,  two  steamboats  collided  on  the  Ohio  River  at 
a point  opposite  the  main  land  of  the  State  of  Indiana. 
By  the  collision  the  hull  of  one  of  them  was  broken  in, 
and  a tire  started,  which  burned  the  boat  to  the  water’s  edge, 
destroying  it  and  causing  the  death  of  one  of  its  passen- 
gers, a citizen  of  Indiana.  The  administrator  of  the  de- 
ceased brought  an  action  for  his  death  in  one  of  the  Courts 
of  Common  Pleas  of  Indiana,  under  a statute  of  that  State, 
which  provides  “ that  when  the  death  of  one  is  caused  by 
the  wrongful  act  or  omission  of  another,  the  personal  rep- 
sentatives  of  the  former  may  maintain  an  action  therefor 
against  the  latter,  if  the  former  might  have  maintained  an 
action,  had  he  lived,  against  the  latter  for  an  injury  for 
the  same  act  or  omission.” 

The  complaint  in  the  action  alleged  that  the  collision  oc- 
curred within  the  territorial  jurisdiction  of  Indiana,  above 
the  line  of  low-water  mark  of  the  river,  and  charged  it 
generally  to  the  careless  and  negligent  navigation  of  the 
steamboat  of  the  defendants  by  their  servants  and  officers 
of  the  vessel.  To  defeat  this  action  the  defendants  relied 
upon  substantially  the  following  grounds  of  defence:  1st, 
that  the  injuries  complained  of  occurred  on  the  river  Ohio 
beyond  low-water  mark  on  the  Indiana  side,  and  within 
the  limits  of  the  State  of  Kentucky;  and  that  by  a law  of 
that  State  an  action  for  the  death  of  a party  from  the  care- 
lessness of  another  could  only  be  brought  within  one  year 
from  such  death,  which  period  had  elapsed  when  the  pres- 
ent action  was  brought;  and,  2d,  that  at  the  time  of  the 
alleged  injuries  the  colliding  boats  were  engaged  in  carry- 
ing on  inter-state  commerce  under  the  laws  of  the  United 
States,  and  the  defendants  as  their  owners  were  not  liable 
for  injuries  occurring  in  their  navigation  through  the  care- 
lessness of  their  officers,  except  as  prescribed  by  those 
laws;  and  that  these  did  not  cover  the  liability  asserted  by 
the  plaintiff  under  the  statute  of  Indiana. 

The  plaintiff  recovered  judgment  in  the  Court  of  Com- 
mon Pleas,  which  the  Supreme  Court  of  the  State  affirmed, 


266 


and  the  case  was  taken  to  the  Supreme  Court  of  the 
United  States.  There  the  first  ground  of  defence  was  not 
considered  as  open  to  consideration  under  the  admission 
of  the  parties,  but  upon  the  second  ground,  the  Court, 
speaking  through  Judge  Field,  said  as  follows: 

“ Under  this  head  it  is  contended  that  the  statute  of  Indiana  creates  a 
new  liability,  and  could  not,  therefore,  be  applied  to  cases  where  the  in- 
juries complained  of  were  caused  by  marine  torts,  without  interfering 
with  the  exclusive  regulation  of  commerce  vested  in  Congress.  The 
position  of  the  defendants,  as  we  understand  it,  is  that  as  by  both  the 
common  and  maritime  law  the  right  of  action  for  personal  torts  dies  with 
the  person  injured,  the  statute  which  allows  actions  for  such  torts,  when 
resulting  in  the  death  of  the  person  injured,  to  be  brought  by  the  per- 
sonal representatives  of  the  deceased,  enlarges  the  liability  of  parties  for 
such  torts,  and  that  such  enlarged  liability,  if  applied  to  cases  of  marine 
torts,  would  constitute  a new  burden  upon  commerce. 

“ In  supposed  support  of  this  position  numerous  decisions  of  this  Court 
are  cited  by  counsel,  to  the  effect  that  the  States  cannot  by  legislation 
place  burdens  upon  commerce  with  foreign  nations  or  among  the  several 
States.  The  decisions  go  to  that  extent,  and  their  soundness  is  not  ques- 
tioned. But  upon  an  examination  of  the  cases  in  which  they  were  ren- 
dered it  will  be  found  that  the  legislation  adjudged  invalid  imposed  a 
tax  upon  some  instrument  or  subject  of  commerce,  or  exacted  a license 
fee  from  parties  engaged  in  commercial  pursuits,  or  created  an  impedi- 
ment to  the  free  navigation  of  some  public  waters,  or  prescribed  condi- 
tions in  accordance  with  which  commerce  in  particular  articles  or  between 
particular  places  was  required  to  be  conducted.  In  all  the  cases  the 
legislation  condemned  operated  directly  upon  commerce,  either  by  way 
of  tax  upon  its  business,  license  upon  its  pursuit  in  particular  chan- 
nels, or  conditions  for  carrying  it  on.  Thus,  in  the  Passenger  Cases,* 
the  laws  of  New'  York  and  Massachusetts  exacted  a tax  from  the  cap- 
tains of  vessels  bringing  passengers  from  foreign  ports  for  every  passen- 
ger landed.  In  the  Wheeling-Bridge  Case  f the  statute  of  Virginia 
authorized  the  erection  of  a bridge,  which  was  held  to  obstruct  the  free 
navigation  of  the  river  Ohio.  In  the  case  of  Sinnot  vs.  Davenport!  the 
statute  of  Alabama  required  the  owner  of  a steamer  navigating  the 
waters  of  the  State  to  file,  before  the  boat  left  the  port  of  Mobile,  in  the 
office  of  the  probate  judge  of  Mobile  County,  a statement  in  writing,  set- 
ting forth  the  name  of  the  vessel  and  of  the  owner  or  owners,  and  his  or 
their  place  of  residence  and  interest  in  the  vessel,  and  prescribed  penalties 
for  neglecting  the  requirement.  It  thus  imposed  conditions  for  carrying 
on  the  coasting  trade  in  the  waters  of  the  State  in  addition  to  those  pre- 
scribed by  Congress.  And  in  all  the  other  cases  where  legislation  of  a State 


* 7 How..  445. 


f 13  Id.,  518. 


% 22  Id.,  227. 


267 


has  been  held  to  be  null  for  interfering  with  the  commercial  power  of 
Congress,  as  in  Brown  vs.  Maryland,*  the  Tonnage  Tax  Cases,!  and  Wei  ton 
vs.  Missouri,J  the  legislation  created,  in  the  way  of  tax,  license,  or  condi- 
tion, a direct  burden  upon  commerce,  or  in  some  way  directly  interfered 
with  its  freedom.  In  the  present  case  no  such  operation  can  be  ascribed 
to  the  statute  of  Indiana.  That  statute  imposes  no  tax,  prescribes  no 
duty,  and  in  no  respect  interferes  with  any  regulations  for  the  navigation 
and  use  of  vessels.  It  only  declares  a general  principle  respecting  the  li- 
ability of  all  persons  within  the  jurisdiction  of  the  State  for  torts  result- 
ing in  the  death  of  parties  injured.  And  in  the  application  of  the  prin- 
ciple it  makes  no  difference  where  the  injury  complained  of  occurred  in 
the  State,  whether  on  land  or  on  water.  General  legislation  of  this  kind 
prescribing  the  liabilities  or  duties  of  citizens  of  a State,  without  distinc- 
tion as  to  pursuit  or  calling,  is  not  open  to  any  valid  objection  because 
it  may  affect  persons  engaged  in  foreign  or  inter-state  commerce.  Ob- 
jection might  with  equal  propriety  be  urged  against  legislation  pre- 
scribing the  form  in  which  contracts  shall  be  authenticated,  or  property 
descend  or  be  distributed  on  the  death  of  its  owner,  because  applicable 
to  the  contracts  or  estates  of  persons  engaged  in  such  commerce.  In  con- 
ferring upon  Congress  the  regulation  of  commerce,  it  was  never  intended 
to  cut  the  States  off  from  legislating  on  all  subjects  relating  to  the  health, 
life,  and  safety  of  their  citizens,  though  the  legislation  might  indirectly 
affect  the  commerce  of  the  country.  Legislation  in  a great  variety  of 
ways  may  affect  commerce  and  persons  engaged  in  it  without  constituting 
a regulation  of  it,  within  the  meaning  of  the  Constitution. 

“It  is  true  that  the  commercial  power  conferred  by  the  Constitution  is 
one  without  limitation.  It  authorizes  legislation  with  respect  to  all  the 
subjects  of  foreign  and  inter-state  commerce,  the  persons  engaged  in  it, 
and  the  instruments  by  which  it  is  carried  on.  And  legislation  has 
largely  dealt,  so  far  as  commerce  by  water  is  concerned,  with  the  instru- 
ments of  that  commerce.  It  has  embraced  the  whole  subject  of  naviga- 
tion. prescribed  what  shall  constitute  American  vessels,  and  by  whom 
they  shall  be  navigated  ; how  they  shall  be  registered  or  enrolled  and  li- 
censed ; to  what  tonnage,  hospital,  and  other  dues  they  shall  be  sub- 
jected ; what  rules  they  shall  obey  in  passing  each  other  ; and  what  pro- 
vision their  owners  shall  make  for  the  health,  safety,  and  comfort  of  their 
crews.  Since  steam  has  been  applied  to  the  propulsion  of  vessels,  legis- 
lation has  embraced  an  infinite  variety  of  further  details  to  guard  against 
accident  and  consequent  loss  of  life. 

“ The  power  to  prescribe  these  and  similar  regulations  necessarily  in- 
volves the  right  to  declare  the  liability  which  shall  follow  their  infrac- 
tion. Whatever,  therefore,  Congress  determines,  either  as  to  a regulation 
or  the  liability  for  its  infringement,  is  exclusive  of  State  authority.  But 
with  reference  to  a great  variety  of  matters  touching  the  rights  and  lia- 


* 12  Wheat.,  425. 


f 12  Wallace,  204. 


X 1st  Otto,  275. 


268 


bilities  of  persons  engaged  in  commerce,  either  as  owners  or  navigators 
of  vessels,  the  laws  of  Congress  are  silent,  and  the  laws  of  the  State  gov- 
ern. The  rules  for  the  acquisition  of  property  by  persons  engaged  in 
navigation,  and  for  its  transfer  and  descent,  are,  with  some  exceptions, 
those  prescribed  by  the  State  to  which  the  vessels  belong.  And  it  may 
be  said  generally  that  the  legislation  of  a State,  not  directed  against  com- 
merce or  any  of  its  regulations,  but  relating  to  the  rights,  duties,  and  li- 
abilities of  citizens,  and  only  indirectly  and  remotely  affecting  the  opera- 
tions ot  commerce,  is  of  obligatory  force  upon  citizens  within  its  territo- 
rial jurisdiction,  whether  on  land  or  water,  or  engaged  in  commerce,  for- 
eign or  inter-state,  or  in  any  other  pursuit.  In  our  judgment  the  statute 
of  Indiana  falls  under  this  class.  Until  Congress,  therefore,  makes  some 
regulation  touching  the  liability  of  parties  for  marine  torts  resulting  in 
the  death  of  the  persons  injured,  we  are  of  opinion  that  the  statute  of 
Indiana  applies,  giving  a right  of  action  in  such  cases  to  the  personal  rep- 
resentatives of  the  deceased,  and  that,  as  thus  applied,  it  constitutes  no 
encroachment  upon  the  commercial  power  of  Congress.”* 

But  the  most  elaborate  consideration  of  the  commercial 
clause  of  the  Constitution,  and  the  extent  to  which  the 
power  of  Congress  is  exclusive  of  State  authority,  found 
among  the  recent  decisions  of  the  Court,  is  contained 
in  an  opinion  rendered  at  the  last  term,  in  the  case  of 
County  of  Mobile  vs.  Kimball. — (12  Otto.,  691.)  In 
February,  1867,  the  Legislature  of  Alabama  passed  an 
act  to  “ provide  for  the  improvement  of  the  river,  bay, 
and  harbor  of  Mobile.”  It  created  a board  of  commis- 
sioners for  the  improvement  of  the  river,  harbor,  and 
bay  of  Mobile,  and  required  the  president  of  the  Commis- 
sioners of  Revenue  of  Mobile  County  to  issue  bonds  to 
the  amount  of  one  million  dollars,  and  deliver  them, 
when  called  for,  to  the  hoard,  to  meet  the  expenses  of  the 
work  directed.  The  board  was  authorized  to  apply  the 
bonds  or  their  proceeds  to  the  cleaning  out,  deepening, 
and  widening  of  the  river,  harbor,  and  bay,  or  any  part 
thereof,  or  to  the  construction  of  an  artificial  harbor  in 
addition  to  such  improvements. 

In  June,  1872,  the  board  of  commissioners  entered  into 
a contract  with  Messrs.  Kimball  & Slaughter  to  dredge 


* United  States  vs.  Bevans,  3 Wheat.,  337. 


26P 


and  cut  a channel  through  a designated  bar  in  the  bay,  of  a 
specified  width,  depth,  and  distance,  at  a named  price  per 
cubic  yard  of  material  excavated  and  removed,  and  to 
receive  in  payment  the  bonds  of  the  county  issued  under 
the  act  mentioned.  In  pursuance  of  this  contract,  the 
work  agreed  upon  was  at  once  undertaken  by  Kimball 
& Slaughter,  and  was  completed  in  March,  1873,  and  ac- 
cepted by  the  board  through  its  authorized  engineer.  The 
amount  due  to  them  was  paid,  with  the  exception  of  six 
bonds,  and  to  obtain  the  delivery  of  those  six,  or  payment 
of  their  value,  suit  was  brought  against  the  county.  Among 
other  defences  to  the  suit,  it  was  contended  that  the  act  of 
the  State,  under  which  the  work  was  done,  conflicted  with 
the  commercial  power  vested  in  Congress,  and  was,  there- 
fore, void.  To  this  objection  the  Court,  speaking  through 
Judge  Field,  said  as  follows : 

“The  objection  that  the  law  of  the  State,  in  authorizing  the  improve- 
ment of  the  harbor  of  Mobile,  trenches  upon  the  commercial  power  of 
Congress,  assumes  an  exclusion  of  State  authority  from  all  subjects  in 
relation  to  which  that  power  may  be  exercised  not  warranted  by  the 
adjudications  of  this  Court,  notwithstanding  the  strong  expressions 
used  by  some  of  its  judges.  That  power  is  indeed  without  limitation. 
It  authorizes  Congress  to  prescribe  the  conditions  upon  which  commerce 
in  all  its  forms  shall  be  conducted  between  our  citizens  and  the  citizens 
or  subjects  of  other  countries,  and  between  the  citizens  of  the  several 
States,  and  to  adopt  measures  to  promote  its  growth  and  insure  its  safety. 
And  as  commerce  embraces  navigation,  the  improvement  of  harbors  and 
bays  along  our  coast,  and  of  navigable  rivers  within  the  States  connecting 
with  them,  falls  within  the  power.  The  subjects,  indeed,  upon  which 
Congress  can  act  under  this  power  are  of  infinite  variety,  requiring  for 
their  successful  management  different  plans  or  modes  of  treatment. 
Some  of  them  are  national  in  their  character,  and  admit  and  require  uni- 
formity of  regulation,  affecting  alike  all  the  States ; others  are  local,  or 
are  mere  aids  to  commerce,  and  can  only  be  properly  regulated  by  pro- 
visions adapted  to  their  special  circumstances  and  localities.  Of  the 
former  class  may  be  mentioned  all  that  portion  of  commerce  with  for- 
eign countries  or  between  the  States  which  consists  in  the  transportation, 
purchase,  sale,  and  exchange  of  commodities.  Here  there  can,  of  neces- 
sity, be  only  one  system  or  plan  of  regulations,  and  that  Congress  alone 
can  prescribe.  Its  non-action  in  such  cases,  with  respect  to  any  particu- 
lar commodity  or  mode  of  transportation,  is  a declaration  of  its  purpose 
that  the  commerce  in  that  commodity  or  by  that  means  of  transportation 


shall  be  free.  There  would  otherwise  be  no  security  against  conflicting 
regulations  of  different  States,  each  discriminating  iu  favor  of  its  own 
products  and  citizens  and  against  the  products  and  citizens  of  other 
States.  And  it  is  a matter  of  public  history  that  the  object  of  vesting- 
in  Congress  the  power  to  regulate  commerce  with  foreign  nations  and 
among  the  States  was  to  insure  uniformity  of  regulation  against  conflict- 
ing and  discriminating  State  legislation. 

“ Of  the  class  of  subjects  local  in  their  nature,  or  intended  as  mere  aids 
to  commerce,  which  are  best  provided  for  by  special  regulations,  may  be 
mentioned  harbor  pilotage,  buoys,  and  beacons  to  guide  mariners  to  the 
proper  channel  in  which  to  direct  their  vessels. 

“ The  rules  to  govern  harbor  pilotage  must  depend  in  a great  degree  upon 
the  peculiarities  of  the  ports  where  they  are  to  be  enforced.  It  has  been 
found  by  experience  that  skill  and  efficiency  on  the  part  of  local  pilots 
is  best  secured  by  leaving  this  subject  principally  to  the  control  of  the 
States.  Their  authority  to  act  upon  the  matter  and  regulate  the  whole 
subject,  in  the  absence  of  legislation  by  Congress,  has  been  recognized  by 
this  Court  in  repeated  instances.  In  Cooley  vs.  The  Board  of  Wardens  of 
the  Port  of  Philadelphia,  the  Court  refers  to  the  act  of  Congress  of  1789, 
declaring  that  pilots  should  continue  to  be  regulated  by  such  laws  as  the 
States  might  respectively  thereafter  enact  for  that  purpose;  and  observes 
that  * it  manifests  the  understanding  of  Congress,  at  the  outset  of  the 
government,  that  the  nature  of  this  subject  is  not  such  as  to  require  its 
exclusive  legislation.  The  practice  of  the  States  and  of  the  national  gov- 
ernment has  been  in  conformity  with  this  declaration,  from  the  origin  of 
the  national  government  to  this  time  ; and  the  nature  of  the  subjeet, 
when  examined,  is  such  as  to  leave  no  doubt  of  the  superior  fitness  and 
propriety,  not  to  say  the  absolute  necessity,  of  different  systems  of  reg- 
ulation, drawn  from  local  knowledge  and  experience,  and  conformed  to 
local  wants.’ — (12  How.,  p.  320.) 

“ Buoys  and  beacons  are  important  aids,  and  sometimes  are  essential  to 
the  safe  navigation  of  vessels,  in  indicating  the  channel  to  be  followed  at 
the  entrance  of  harbors  and  in  rivers  ; and  their  establishment  by  Con- 
gress is  undoubtedly  within  its  commercial  power.  But  it  would  be  ex- 
tending that  power,  to  the  exclusion  of  State  authority,  to  an  unreason- 
able degree,  to  hold  that,  whilst  it  remained  unexercised  upon  this  sub- 
ject, it  would  be  unlawful  for  the  State  to  provide  the  buoys  and  beacons 
required  for  the  safe  navigation  of  its  harbors  and  rivers,  and  in  case  of 
their  destruction,  by  storms  or  otherwise,  it  could  not  temporarily  sup- 
ply  their  places  until  Congress  could  act  in  the  matter  and  provide  for 
their  re-establishment.  That  power  which  every-State  possesses,  some- 
times termed  its  police  power,  by  which  it  legislates  for  the  protection  of 
the  lives,  health,  and  property  of  its  people,  would  justify  measures  of 
this  kind. 

“ The  uniformity  of  commercial  regulations,  which  the  grant  to  Con- 
gress was  designed  to  secure  against  conflicting  State  provisions,  was  nec- 


271 


essarily  intended  only  for  cases  where  such  uniformity  is  practicable. 
Where,  from  its  nature  or  the  sphere  of  its  operation,  the  subject  is 
local  and  limited,  special  regulations  adapted  to  the  immediate  locality 
could  only'  have  been  contemplated.  State  action  upon  such  subjects 
can  constitute  no  interference  with  the  commercial  power  of  Con- 
gress; for  when  that  acts,  the  State  authority  is  superseded.  Inaction 
of  Congress  upon  these  subjects  of  a local  nature  or  operation,  unlike 
its  inaction  upon  matters  affecting  all  the  States  and  requiring  uni- 
formity' of  regulation,  is  not  to  be  taken  as  a declaration  that  nothing 
shall  be  done  with  respect  to  them,  but  is  rather  to  be  deemed  a declara- 
tion that,  for  the  time  being,  and  until  it  sees  tit  to  act,  they  may  be  reg- 
ulated byr  State  authority. 

u The  improvement  of  harbors,  bays,  and  navigable  rivers  within  the 
States  falls  within  this  last  category'  of  cases.  The  control  of  Congress 
over  them  is  to  insure  freedom  in  their  navigation,  so  far  as  that  is  essen- 
tial to  the  exercise  of  its  commercial  power.  Such  freedom  is  not  en- 
croached upon  by  the  removal  of  obstructions  to  their  navigability,  or  byr 
other  legitimate  improvement.  The  States  have  as  full  control  over  their 
purely  internal  commerce  as  Congress  has  over  commerce  among  the  sev- 
eral States  and  with  foreign  nations;  and  to  promote  the  growth  of  that 
internal  commerce  and  insure  its  safety,  they  have  an  undoubted  right  to 
remove  obstructions  from  their  harbors  and  rivers,  deepen  their  channels, 
and  improve  them  generally,  if  they  do  not  impair  their  free  navigation 
as  permitted  under  the  laws  of  the  United  States,  or  defeat  any'  system 
for  the  improvement  of  their  navigation  provided  by  the  general  govern- 
ment. Legislation  of  the  States  for  the  purposes  and  within  the  limits 
mentioned  do  not  infringe  upon  the  commercial  power  of  Congress;  and 
so  we  hold  that  the  act  of  the  State  of  Alabama,  of  February  16,  1867,  to 
provide  for  the  ; improvement  of  the  river,  bay,  and  harbor  of  Mobile  ’ 
is  not  invalid. 

“ There  have  been,  it  is  true,  expressions  by  individual  judges  of  this 
Court  going  to  the  length  that  the  mere  grant  of  the  commercial  power, 
anterior  to  any  action  of  Congress  under  it,  is  exclusive  of  all  State  au- 
thority' ; but  there  has  been  no  adj udication  of  the  Court  to  that  effect.  In 
the  opinion  of  the  Court  in  Gibbons  vs.  Ogden,  the  first  and  leading  case 
upon  the  construction  of  the  Constitution,  and  which  opinion  is  recog- 
nized as  one  of  the  ablest  of  the  great  Chief  Justice  then  presiding,  there 
are  several  expressions  which  would  indicate,  and  his  general  reasoning 
would  tend  to  the  same  conclusion,  that  in  his  judgment  the  grant  of  the 
commercial  power  was  of  itself  sufficient  to  exclude  all  action  of  the 
States ; and  it  is  upon  them  that  the  advocates  of  the  exclusive  theory 
chiefly  rely  ; and  yet  he  takes  care  to  observe  that  the  question  was  not 
involved  in  the  decision  required  by  that  case.  ‘ In  discussing  the  ques- 
tion whether  this  power  is  still  in  the  States,’  he  observes  that  ‘ in  the 
case  under  consideration  we  may  dismiss  from  it  the  inquiry,  whether  it 
is  surrendered  by  the  mere  grant  to  Congress,  or  is  retained  until  Con- 


gress  shall  exercise  the  power.  We  may  dismiss  that  inquiry  because, 
it  has  been  exercised,  and  Ihe  regulations  which  Congress  deemed  it  pro- 
per to  make  are  now  in  full  operation.  The  sole  question  is,  can  a State 
regulate  commerce  with  foreign  nations  and  among  the  several  States 
while  Congress  is  regulating  it  ?’  And  the  decision  was  necessarily  re- 
stricted by  the  limitations  of  the  question  presented.  It  determined 
that  the  grant  of  power  by  the  Constitution,  accompanied  by  legislation 
under  it,  operated  as  an  inhibition  upon  the  States  from  interfering  with 
the  subject  of  that  legislation.  The  acts  of  New  York  giving  to  Living- 
ston and  Fulton  an  exclusive  right  to  navigate  all  the  waters  within  its 
jurisdiction,  with  vessels  propelled  by  steam,  for  a certain  period,  being 
in  collision  with  the  laws  of  Congress  regulating  the  coasting  trade,  were, 
therefore,  adjudged  to  be  unconstitutional.  This  judgment  was  rendered 
in  1824. — (9  Wheat.,  1.)  Some  years  later  (1829)  the  case  of  Wilson  vs. 
Blackbird  Creek  Marsh  Company  came  before  the  Court.  There,  a law 
of  Delaware  authorizing  the  construction  of  a bridge  over  one  of  its  small 
navigable  streams,  which  obstructed  the  navigation  of  the  stream,  was 
held  to  be  repugnant  to  the  commercial  power  of  Congress.  The  Court, 
Chief  Justice  Marshall  delivering  its  opinion,  placed  its  decision  entirely 
upon  the  absence  of  any  congressional  legislation  on  the  subject.  Its 
language  was:  ‘ If  Congress  had  passed  any  act  which  bore  upon  the  case 
—any  act  in  execution  of  the  power  to  regulate  commerce,  the  object  of 
which  was  to  control  State  legislation  over  these  small  navigable  creeks 
into  which  the  tide  ilows,  and  which  abound  throughout  the  lower 
country  of  the  Middle  and  Southern  States,  we  should  not  feel  much 
difficulty  in  saying  that  a State  law  coming  in  conflict  with  such  act 
would  be  void.  But  Congress  has  passed  no  such  act.  The  repugnancy 
of  the  law  of  Delaware  to  the  Constitution  is  placed  entirely  on  its  repug- 
nancy to  the  power  to  regulate  commerce  with  foreign  nations  and  among 
the  several  States — a power  which  has  not  been  so  exercised  as  to  affect 
the  question.’ — (2  Peters,  282.  ) 

In  the  License  Cases,  which  were  before  the  Court  in  1847,  there  was 
great  diversity  of  views  in  the  opinions  of  the  different  judges  upon  the 
operation  of  the  grant  of  the  commercial  power  of  Congress  in  the  absence 
of  congressional  legislation.  Extreme  doctrines  upon  both  sides  of  the 
question  were  asserted  by  some  of  the  judges,  but  the  decision  reached, 
so  far  as  it  can  be  viewed  as  determining  any  question  of  construction, 
was  confirmatory  of  the  doctrine  that  legislation  of  Congress  is  essential 
to  prohibit  the  action  of  the  States  upon  the  subjects  there  considered. 

“ But  in  1851,  in  the  case  of  Cooley  vs.  The  Wardens  of  the  Port  of  Phil- 
adelphia, to  which  we  have  already  referred,  the  attention  of  the  Court 
appears  to  have  been  for  the  first  time  drawn  to  the  varying  and  differ- 
ent regulations  required  by  the  different  subjects  upon  which  Congress 
may  legislate  under  the  commercial  power  ; and  from  this  consideration 
the  conclusion  was  reached  that,  as  some  of  these  subjects  are  national 
in  their  nature,  admitting  of  one  uniform  plan  or  system  of  regulation, 


whilst  others,  being  local  in  their  nature  or  operation,  can  be  best  regu- 
lated by  the  States,  the  exclusiveness  of  the  power  in  any  case  is  to  be 
determined  more  by  the  nature  of  the  subject  upon  which  it  is  to  operate 
than  by  the  terms  of  the  grant,  which,  though  general,  are  not  accompa- 
nied by  any  express  prohibition  to  the  exercise  of  the  power  by  the  States. 
The  decision  was  confined  to  the  validity  of  regulations  by  the  States  of 
harbor  pilotage  ; but  the  reasoning  of  the  Court  suggested  as  satisfactory  a 
solution  as  perhaps  could  be  obtained  of  the  question  which  had  so  long 
divided  the  judges.  The  views  expressed  in  the  opinion  delivered  are 
followed  in  Gilman  vs.  Philadelphia  (3  Wall.. 727),  and  are  mentioned  with 
approval  in  Crandall  vs.  State  of  Nevada  (6  Wall.,  42).  In  the  first  of 
these  cases  the  Court,  after  stating  that  some  subjects  of  commerce  call 
for  uniform  rules  and  national  legislation,  and  that  others  can  ‘be  best 
regulated  by  rules  and  provisions  suggested  by  the  varying  circumstances 
of  different  localities,  and  limited  in  their  operation  to  such  localities  re- 
spectively,’ says,  ‘whether  the  power  in  any  given  case  is  vested  exclu- 
sively in  the  general  government,  depends  upon  the  nature  of  the  sub- 
ject regulated.’  The  doctrine  was  subsequently  recognized  in  the  case 
of  Welton  vs.  Missouri  (91  U.  S.,  282),  in  Henderson  vs.  Mayor  of  New 
York  (95  U.  S.,  259),  and  in  numerous  other  cases  ; and  it  may  be  con- 
sidered as  expressing  the  final  judgment  of  the  Court. 

Perhaps  some  of  the  divergence  of  views  upon  this  question  among 
former  judges  may  have  arisen  from  not  always  bearing  in  mind  the  dis- 
tinction between  commerce,  as  strictly  defined,  and  its  local  aids  or  in- 
struments or  measures  taken  for  its  improvement.  Commerce  with  for- 
eign countries  and  among  the  States,  strictly  considered,  consists  in  inter- 
course and  traffic,  including  in  these  terms  navigation  and  the  trans- 
portation and  transit  of  persons  and  property  as  well  as  the  purchase, 
sale,  and  exchange  of  commodities.  For  the  regulation  of  commerce  as 
thus  defined  there  can  be  only  one  system  of  rules  applicable  alike  to  the 
whole  country  ; and  the  authority  which  can  act  for  the  whole  country 
can  alone  adopt  such  a system.  Action  upon  it  by  separate  States  is  not, 
therefore,  permissible.  Language  affirming  the  exclusiveness  of  the 
grant  of  power  over  commerce  as  thus  defined  may  not  be  inaccurate, 
when  it.  would  be  so  if  applied  to  legislation  upon  subjects  which  are 
merely  auxiliary  to  commerce.” 


The  Power  of  Taxation  by  the  General  and  State 
Governments,  and  some  of  its  Limitations. 

It  has  been  settled  by  numerous  decisions  of  the  Su- 
preme Court  of  the  United  States  J:hat  the  obligations 
and  instrumentalities  of  the  general  government,  that  is, 


274 


the  means  by  which  its  functions  are  executed,  are  not 
subject  to  taxation  by  the  States. 

In  McCullough  vs.  Maryland,  (4  Wheaton,  432,)  de- 
cided in  1819, — which  is  the  leading  case  on  this  sub- 
ject,— a statute  of  Maryland  imposing  a tax  upon  a branch 
of  the  Bank  of  the  United  States  established  at  Balti- 
more, in  that  State,  was  considered.  The  Court  held  that 
the  hank,  being  one  of  the  instrumentalities  of  the  gov- 
ernment in  the  execution  of  its-  powers,  was  not  subject 
to  taxation  by  the  State;  that  the  power  to  create  the 
bank  implied  the  power  to  preserve  it,  and  that  the  right 
of  the  State  to  tax,  if  conceded,  might  he  so  exercised  as 
to  destroy  the  institution,  and  thus  wholly  defeat  the  op- 
erations of  the  Federal  Government.  “If  the  States,” 
said  Chief  Justice  Marshall,  “ may  tax  one  instrument 
employed  hv  the  government  in  the  execution  of  its  pow- 
ers, they  may  tax  any  and  every  other  instrument.  They 
may  tax  the  mail;  they  may  tax  the  mint;  they  may  tax 
patent  rights;  they  may  tax  the  papers  of  the  custom- 
house, they  may  tax  judicial  process;  they  may  tax  all 
the  means  employed  by  the  government  to  an  excess 
which  would  defeat  all  the  ends  of  government.  This 
was  not  intended  by  the  American  people.  They  did 
not  design  to  make  their  government  dependent  on  the 
States.” 

In  AVeston  vs.  Charleston,  (2d  Peters,  449,)  decided  in 
1829,  an  ordinance  of  the  city  of  Charleston  imposing  a 
tax  upon  all  personal  estate  owned  in  the  said  city,  includ- 
ing, among  other  things,  six  and  seven  per  cent,  stock  of 
the  United  States,  was  considered.  The  Court  held  that 
the  tax  in  question  was  a tax  upon  the  contract  subsisting 
between  the  government  and  individuals,  and,  therefore, 
operated  directly  upon  the  power  to  borrow  money  on  the 
credit  of  the  United  States;  that  if  the  right  to  impose  it 
existed  with  the  States,  it  was  a right  which  in  its  nature 
acknowledged  no  limits,  and  might  be  exercised  to  the 
serious  embarrassment  of  the  Federal  Government;  that 


275 

such  a right  was,  therefore,  inconsistent  with  the  supremacy 
of  that  government  in  the  powers  granted  to  it. 

In  Dobbins  vs.  The  Commissioners  of  Erie  County, 
(16  Peters,  435,)  decided  in  1842,  a law  of  Pennsylvania, 
authorizing  an  assessment  upon  all  “ offices  and  positions 
of  profit,”  was  held  invalid  so  far  as  it  applied  to  offices  of 
the  United  States,  the  Court  re-affirming  the  doctrine  that 
the  States  cannot  impose  a tax  upon  the  means  and  instru- 
mentalities of  the  general  government  in  the  execution  of 
its  powers.  The  compensation,  said  the  Court,  of  an  officer 
of  the  United  States  is  fixed  by  a law  of  Congress  passed 
in  the  exercise  of  its  discretion;  such  law  confers  upon  him 
the  right  to  the  compensation  in  its  entireness,  and  any  act 
of  a State  imposing  a tax  upon  the  office  in  diminishing  its 
recompense  conflicts  with  that  law. 

The  principle  involved  in  these  decisions,  that  the 
means  and  instrumentalities  by  which  the  general  gov- 
ernment executes  its  powers  cannot  be  embarrassed  and 
burdened  by  the  action  of  the  States,  is  equally  applicable 
to  prevent  the  means  and  instrumentalities  of  the  govern- 
ments of  the  States,  essential  to  the  execution  of  their  re- 
served powers,  from  being  in  like  manner  embarrassed  and 
burdened  by  the  general  government,  and  was  so  applied 
in  the  case  of  Collector  vs.  Day. — (11  Wall.,  113.)  Un- 
der an  act  of  Congress  a tax  had  been  levied  upon  the 
salary  of  a judge  of  probate  in  Massachusetts.  The  judge 
paid  the  tax  under  protest,  and  brought  suit  to  recover 
it  back.  The  Supreme  Court  held  that  it  was  not  compe- 
tent for  Congress  to  impose  a tax  upon  the  salary  of  a ju- 
dicial officer  of  a State.  Referring  to  the  case  of  Dobbins 
vs.  The  Commissioners  of  Erie  County,  the  Court,  speak- 
ing through  Judge  Nelson,  said: 

“ If  the  means  and  instrumentalities  employed  by  that  government  [the 
general  government]  to  carry  into  operation  the  powers  granted  to  it  are, 
necessarily,  and,  for  the  sake  of  self-preservation,  exempt  from  taxation  by 
the  States,  'why  are  not  those  of  the  States  depending  upon  their  reserved 
powers,  for  like  reasons,  equally  exempt  from  federal  taxation ? Their 
unimpaired  existence  in  the  one  case  is  as  essential  as  in  the  other.  It  is 

19 


admitted  that  there  is  no  express  provision  in  the  Constitution  that  pro- 
hibits the  general  government  from  taxing  the  means  and  instrumentali- 
ties of  the  States,  nor  is  there  any  prohibiting  the  States  from  taxing  the 
means  and  instrumentalities  of  that  government.  In  both  cases  the  ex- 
emption rests  upon  necessary  • implication,  and  is  upheld  by  the  great 
law  of  self-preservation  ; as  any  government,  whose  means  employed  in 
conducting  its  operations,  if  subject  to  the  control  of  another  and  distinct 
government,  can  exist  only  at  the  mercy  of  that  government.” 

In  addition  to  this  restriction  upon  both  governments  in 
the  power  of  taxation, — that  it  cannot  be  exercised  so  as 
to  impair  the  existence  and  efficiency  of  the  other — there 
is  a further  restriction  necessarily  arising  from  the  limits 
of  their  territorial  jurisdiction.  Neither  can  exercise  the 
taxing  power  upon  property  or  persons  beyond  that  juris- 
diction. The  attempt  to  exercise  it  in  that  way  would  he 
regarded  elsewhere  as  a mere  abuse  of  authority.  Says 
Chief  Justice  Marshall:  “ All  subjects  over  which  the  sov- 
ereign power  of  a State  extends  are  objects  of  taxation,  but 
those  over  which  it  does  not  extend  are  upon  the  soundest 
principles  exempt  from  taxation.  This  proposition  may  al- 
most be  pronounced  self-evident.”— (4  Wheaton,  429.) 

This  subject  came  before  the  Supreme  Court  for  special 
consideration  in  the  case  of  Railroad  Company  vs.  Penn- 
sylvania, which  is  reported  under  the  title  of  State  Tax  on 
Foreign-Held  Bonds. — (15  Wall.,  300.)  In  May,  1868, 
the  Legislature  of  that  State  passed  an  act  requiring  the 
president,  treasurer,  or  cashier  of  every  corporation,  ex- 
cept savings  banks  created  under  its  laws  and  doing  busi- 
ness there,  which  paid  interest  to  bondholders  or  other 
creditors,  to  retain  from  them  before  such  payment  a tax 
of  five  per  cent,  upon  every  dollar  of  interest,  and  to  pay 
over  the  same  semi-annually  to  the  State  treasurer  for  the 
use  of  the  Commonwealth. 

In  1848  the  Legislature  of  Ohio  incorporated  the  Cleve- 
land, Painesville  and  Ashtabula  Railroad  Company,  and 
authorized  it  to  construct  a railroad  from  the  city  of  Cleve- 
land, in  that  State,  to  the  line  of  the  State  of  Pennsylva- 
nia. Under  this  act  and  its  supplement,  passed  in  1850, 


the  road  was  constructed.  In  1854  the  Legislature  of  Penn- 

O 

sylvania  authorized  the  company  to  construct  a road  from 
Erie,  in  that  State,  to  the  State  line  of  Ohio,  so  as  to  con- 
nect with  the  road  from  Cleveland,  and  to  purchase  a 
road  already  constructed  between  those  places.  This  road 
was  constructed,  or  the  one  constructed  was  purchased,  so 
that  the  two  roads  effected  a continuous  line  between  the 
cities  of  Cleveland  and  Erie — a distance  of  ninety-five  and 
one-half  miles,  twenty-five  of  which  were  in  Pennsylva- 
nia. The  company,  so  far  as  it  acted  in  Pennsylvania, 
under  the  authority  of  an  act  of  its  Legislature,  was  held 
to  lie  a corporation  in  that  State  and  subject  to  its  laws 
for  the  taxation  of  incorporated  companies,  though  there 
was  only  one  board  of  directors  for  both  companies.  In 
1868  the  funded  debt  of  the  company  amounted  to  two 
and  one-half  millions  of  dollars,  and  was  in  bonds  secured 
by  three  mortgages, — one  for  five  hundred  thousand  dol- 
lars, made  in  1854;  one  for  a million  of  dollars,  made 
in  1859,  and  one  for  a million  dollars,  made  in  1867. 
Each  of  these  was  upon  the  entire  road  from  Erie,  in 
Pennsylvania,  to  Cleveland,  in  Ohio,  including  the  right- 
of-way  and  all  the  buildings  and  other  property  of  every 
kind  connected  with  the  road.  The  principal  and  interest 
of  the  bonds  first  issued  were  payable  in  Philadelphia.  The 
principal  and  interest  of  the  other  bonds  were  payable 
in  Yew  York.  All  of  them  were  executed  and  delivered 
in  Cleveland,  Ohio,  and  nearly  all  of  them  were  issued, 
and  were  afterwards  held  by  non-residents  of  Pennsyl- 
vania and  citizens  of  other  States.  The  officers  of  the 
State  of  Pennsylvania  endeavored  to  enforce  the  tax  im- 
posed by  the  act  of  1868  upon  the  interest  on  these  bonds, 
having  first  apportioned  it  according  to  the  length  of  the 
road,  assigning  to  the  part  in  the  State  of  Pennsylvania 
an  amount  in  proportion  to  the  whole  indebtedness  which 
that  part  bore  to  the  whole  road.  The  validity  of  the  tax, 
so  far  as  it  applied  to  the  interest  on  the  bonds  made  pay- 
able out  of  the  State,  issued  to  and  held  by  non-residents 


278 


of  the  State  and  citizens  of  other  States,  was  contested  in 
the  courts  of  the  State,  tirst  in  the  Common  Fleas  and 
then  in  the  Supreme  Court,  and  being  by  them  sustained, 
was  brought  to  the  consideration  of  the  Supreme  Court  of 
the  United  States.  In  denying  the  validity  of  the  tax,  that 
Court,  speaking  through  Judge  Field,  said  as  follows: 

“ The  power  of  taxation,  however  vast  in  its  character  anil  searching 
in  its  extent,  is  necessarily  limited  to  subjects  within  the  jurisdiction  of 
the  State.  These  subjects  are  persons,  property,  and  business.  Whatever 
form  taxation  may  assume,  whether  as  duties,  imposts,  excises,  or  licenses, 
it  must  relate  to  one  of  these  subjects.  It  is  not  possible  to  conceive  of 
any  other,  though,  as  applied  to  them,  the  taxation  may  be  exercised  in 
a great  variety  of  ways.  It  may  touch  property  in  every  shape,  in  its  nat- 
ural condition,  in  its  manufactured  form,  and  in  its  various  transmuta- 
tions ; and  the  amount  of  the  taxation  may  be  determined  by  the  value 
of  the  property,  or  its  use,  or  its  capacity,  or  its  productiveness.  It  may 
touch  business  in  the  almost  infinite  forms  in  which  it  is  conducted,  in 
professions,  in  commerce,  in  manufactures,  and  in  transportation.  Un- 
less restrained  by  provisions  of  the  Federal  Constitution,  the  power  of  the 
State  as  to  the  mode,  form,  and  extent  of  taxation  is  unlimited,  where 
the  subjects  to  which  it  applies  are  within  her  jurisdiction  Corpora- 
tions may  be  taxed  like  natural  persons  upon  their  property  and  business ; 
but  debts  owing  by  corporations,  like  debts  owing  by  individuals,  are  not 
property  of  the  debtors  in  any  sense.  They  are  obligations  of  the  debtors 
and  only  possess  value  in  the  hands  of  the  creditors.  With  them  they 
are  property,  and  in  their  hands  they  may  be  taxed.  To  call  debts  pro- 
perty of  the  debtors,  is  simply  to  misuse  terms.  All  the  property  there 
can  be  in  the  nature  of  things  in  debts  of  corporations,  belongs  to  the 
creditors  to  whom  they  are  payable,  and  follows  their  domicile  wherever 
that  may  be.  Their  debts  can  have  no  locality  separate  from  the  parties 
to  whom  the37  are  due.  This  principle  might  be  stated  in  many  different 
■ways,  and  supported  by  citations  from  numerous  adjudications ; but  no 
number  of  authorities  and  no  forms  of  expression  could  add  anything  to 
its  obvious  truth,  which  is  recognized  upon  its  simple  statement. 

“The  bonds  issued  by  the  railroad  company  in  this  case  are  undoubt- 
edly property,  but  property  in  the  hands  of  the  holders,  not  property  of 
the  obligors.  So  far  as  they  are  held  bj7  non-residents  of  the  State,  they 
are  property  beyond  the  jurisdiction  of  the  State.  The  law  which  re- 
quires the  treasurer  of  the  company  to  retain  five  per  cent,  of  the 
interest  due  to  the  non-resident  bondholder  is  not,  therefore,  a legiti- 
mate exercise  of  the  taxing  power.  It  is  a law  which  interferes  between 
the  company  and  the  bondholder,  and  under  the  pretence  of  levying 
a tax  commands  the  company  to  withhold  a portion  of  the  stipu- 
lated interest  and  pay  it  over  to  the  State,  It  is  a law  which  thus  im- 


pairs  the  obligation  of  a contract  between  the  parties.  The  obligation  of 
a contract  depends  upon  its  terms  and  the  means  which  the  law  in  ex- 
istence at  the  time  affords  for  its  enforcement.  A law  which  alters  the 
terms  of  a contract  by  imposing  new  conditions,  or  dispensing  with  those 
expressed,  is  a law  which  impairs  its  obligations,  for,  as  stated  on  another 
occasion,  such  a law  relieves  the  parties  from  the  moral  duty  of  perform- 
ing the  original  stipulations  of  the  contract,  and  it  prevents  their  legal 
enforcement.  The  Act  of  Pennsylvania  of  May  1st,  1868,  falls  within 
this  description.  It  directs  the  treasurer  of  every  incorporated  company 
to  retain  from  the  interest  stipulated  to  its  bondholders  five  per  cent, 
upon  every  dollar  and  pay  it  into  the  treasury  of  the  Commonwealth.  It 
thus  sanctions  and  commands  a disregard  of  the  express  provisions  of  the 
contracts  between  the  company  and  its  creditors.  It  is  only  one  of  many 
cases  where,  under  the  name  of  taxation,  an  oppressive  exaction  is  made 
without  constitutional  warrant,  amounting  to  little  less  than  an  arbitrary 
seizure  of  private  property.  It  is,  in  fact,  a forced  contribution  levied 
upon  property  held  in  other  States,  where  it  is  subjected,  or  may  be  sub- 
jected, to  taxation  upon  an  estimate  of  its  full  value.” 

“ The  case  of  Maltby  vs.  The  Beading  and  Columbia  Railroad  Company , 
decided  by  the  Supreme  Court  of  Pennsylvania  in  1866,  was  referred  to 
by  the  Common  Pleas  in  support  of  its  ruling,  and  is  relied  upon  by 
counsel  in  support  of  the  tax  in  question.  The  decision  in  that  case  does 
go  to  the  full  extent  claimed,  and  holds  that  bonds  of  corporations  held 
by  non-residents  are  taxable  in  that  State.  But  it  is  evident,  from  a pe- 
rusal of  the  opinion  of  the  Court,  that  the  decision  proceeded  upon  the 
idea  that  the  bond  of  the  non-resident  was  itself  property  in  the  State, 
because  secured  by  mortgage  on  property  there.  ‘ It  is  undoubtedly 
true,’  said  the  Court,  ‘that  the  Legislature  of  Pennsylvania  cannot  im- 
pose a personal  tax  upon  the  citizen  of  another  State,  but  the  constant 
practice  is  to  tax  property  within  our  jurisdiction  which  belongs  to  non- 
residents.’ And  again  : 1 There  must  be  jurisdiction  over  either  the  prop- 
erty or  the  person  of  the  owner,  else  the  power  cannot  be  exercised  ; but 
when  the  property  is  within  our  jurisdiction,  and  enjoys  the  protection 
of  our  State  government,  it  is  justly  taxable,  and  it  is  of  no  moment  that 
the  owner,  who  is  required  to  pay  the  tax,  resides  elsewhere.’  There  is 
no  doubt  of  the  correctness  of  these  views.  But  the  Court  then  proceeds 
to  state  that  the  principle  of  taxation  as  the  correlative  of  protection  is 
as  applicable  to  a non-resident  as  to  a resident ; that  the  loan  to  the  non- 
resident is  made  valuable  by  the  franchises  which  the  company  derived 
from  the  Commonwealth,  and  as  an  investment  rests  upon  State  author- 
ity, and  therefore  ought  to  contribute  to  the  support  of  the  State  gov- 
ernment. It  also  adds  that  though  the  loan  is  for  some  purposes  subject 
to  the  law  of  the  domicile  of  the  holder,  ‘yet,  in  a very  high  sense,’  it  is 
also  property  in  Pennsylvania,  observing  in  support  of  this  position  that 
the  holder  of  a bond  of  the  company  could  not  enforce  it  except  in  that 
State,  and  that  the  mortgage  given  for  its  security  was  upon  property  and 


280 


franchises  within  her  jurisdiction.  The  amount  of  all  which  is  this  : 
that  the  State  which  creates  and  protects  a corporation  ought  to  have  the 
right  to  tax  the  loans  negotiated  by  it,  though  taken  and  held  by  non- 
residents, a proposition  which  it  is  unnecessary  to  controvert.  The  le- 
gality of  a tax  of  that  kind  would  not  be  questioned  if,  in  the  charter  of 
the  company,  the  imposition  of  the  tax  were  authorized,  and  in  the  bonds 
of  the  company,  or  its  certificates  of  loan,  the  liability  of  the  loan  to  tax- 
ation were  stated.  The  tax  in  that  case  would  be  in  the  nature  of  a li- 
cense tax  for  negotiating  the  loan,  for,  in  whatever  manner  made  payable, 
it  would  ultimately  fall  on  the  company  as  a condition  of  effecting  the 
loan,  and  parties  contracting  with  the  company  would  provide  for  it  by 
proper  stipulations.  But  there  is  nothing  in  the  observations  of  the 
Court,  nor  is  there  anything  in  the  opinion,  which  shows  that  the  bond 
of  the  non-resident  was  property  in  the  State,  or  that  the  non-resident 
had  any  property  in  the  State  which  was  subject  to  . taxation,  within  the 
principles  laid  down  by  the  Court  itself,  which  we  have  cited.  The 
property  mortgaged  belonged  entirely  to  the  company,  and  so  far  as  it 
was  situated  in  Pennsylvania  was  taxable  there.  If  taxation  is  the  cor- 
relative of  protection,  the  taxes  which  it  there  paid  were  the  correlative 
for  the  protection  which  it  there  received.  And  neither  the  taxation  of 
the  property  nor  its  protection  was  augmented  or  diminished  by  the  fact 
that  the  corporation  was  in  debt  or  free  from  debt.  The  property  in  no 
sense  belonged  to  the  non-resident  bondholder  or  to  the  mortgagee  of  the 
company.  The  mortgage  transferred  no  title ; it  created  only  a lien  upon 
the  property.  Though  in  form  a conveyance,  it  was  both  at  law  and  in 
equity  a mere  security  for  the  debt.  That  such  is  the  nature  of  a mort- 
gage in  Pennsylvania  has  been  frequently  ruled  by  her  highest  Court. 
In  Witmer’s  Appeal  the  Court  said  : ‘ The  mortgagee  has  no  estate  in  the 
land,  any  more  than  the  judgment  creditor.  Both  have  liens  upon  it, 
and  no  more  than  liens.’  And  in  that  State  all  possible  interests  in  lands, 
whether  vested  or  contingent,  are  subject  to  levy  and  sale  on  execution  ; 
yet  it  has  been  held,  on  the  ground  that  a mortgagee  has  no  estate  in  the 
lands,  that  the  mortgaged  premises  cannot  be  taken  in  execution  for  his 
debt Such  being  the  character  of  a mortgage  in  Penn- 

sylvania, it  cannot  be  said,  as  was  justly  observed  by  counsel,  that  the 
non-resident  holder  and  owner  of  a bond,  secured  by  a mortgage  in  that 
State,  owns  any  real  estate  there.  A mortgage  being  there  a mere  chose 
in  action,  it  only  confers  upon  the  holder,  or  the  party  for  whose  benefit 
the  mortgage  is  given,  a right  to  proceed  against  the  property  mortgaged, 
upon  a given  contingency,  to  enforce,  by  its  sale,  the  payment  of  his  de- 
mand. This  right  has  no  locality  independent  of  the  party  in  whom  it 
resides.  It  may  undoubtedly  be  taxed  by  the  State  when  held  by  a resi- 
dent therein,  but  when  held  by  a non-resident,  it  is  as  much  beyond  the 
jurisdiction  of  the  State  as  the  person  of  the  owner. 

“ It  is  undoubtedly  true  that  the  actual  situs  of  personal  property, 
which  has  a visible  and  tangible  existence,  and  not  the  domicile  of  its 


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owner,  will,  in  many  cases,  determine  the  State  in  which  it  may  be  taxed. 
The  same  thing  is  true  of  public  securities,  consisting  of  State  bonds  and 
bonds  of  municipal  bodies,  and  circulating  notes  of  banking  institutions  ; 
the  former,  by  general  usage,  have  acquired  the  character  of  and  are 
treated  as  property  in  the  place  where  they  are  found,  though  removed 
from  the  domicile  of  the  owner ; the  latter  are  treated  and  pass  as 
money  wherever  they  are:  But  other  personal  property,  consisting  of 
bonds,  mortgages,  and  debts  generally,  has  no  situs  independent  of  the 
domicile  of  the  owner,  and  certainly  can  have  none  where  the  instru- 
ments, as  in  the  present  case,  constituting  the  evidences  of  debt,  are  not 
separated  from  the  possession  of  the  owners. 

“ Cases  were  cited  by  counsel  on  the  argument  from  the  decisions  of 
the  highest  Courts  of  several  States,  which  accord  with  the  views  we 
have  expressed.  In  Davenport  vs.  The  Mississippi  and  Missouri  Railroad 
Company  ' 12  Iowa , 539),  the  question  arose  before  the  Supreme  Court  of 
Iowa,  whether  mortgages  on  property  in  that  State  held  by  non-residents 
could  be  taxed  under  a law  which  provided  that  all  property,  real  and 
personal,  within  the  State,  with  certain  exceptions  not  material  to  the 
present  case,  should  be  subject  to  taxation,  aud  the  Court  said  : ‘ Both 

in  law  and  equity  the  mortgagee  has  only  a chattel  interest.  It  is  true 
that  the  situs  of  the  property  mortgaged  is  within  the  jurisdiction  of  the 
State,  but  the  mortgage  itself,  being  personal  property,  a chose  in  action, 
attaches  to  the  person  of  the  owner.  It  is  agreed  by  the  parties  that  the 
owners  and  holders  of  the  mortgages  are  non-residents  of  the  State.  If 
so,  and  the  property  of  the  mortgage  attaches  to  the  person  of  the  owner, 
it  follows  that  these  mortgages  are  not  property  within  the  State,  and  if 
not,  they  are  not  the  subject  of  taxation.’ 

“ Some  adjudications  in  the  Supreme  Court  of  Pennsylvania  were  also 
cited  on  the  argument,  which  appear  to  recognize  doctrines  inconsistent 
with  that  announced  in  Maltby  vs.  Reading  and  Columbia  Railroad  Com- 
pany. particularly  the  case  of  McKeen,  vs.  The  County  of  Northampton,  and 
the  case  of  Short's  Estate , but  we  do  not  deem  it  necessary  to  pursue  the 
matter  further.  We  are  clear  that  the  tax  cannot  be  sustained  ; that  the 
bonds,  being  held  by  non-residents  of  the  State,  are  only  property  in  their 
hands,  and  that  they  are  thus  beyond  the  jurisdiction  of  the  taxing  power 
of  the  State.  Even  where  the  bonds  are  held  by  residents  of  the  State, 
the  retention  by  the  company  of  a portion  of  the  stipulated  interest  can 
only  be  sustained  as  a mode  of  collecting  a tax  upon  that  species  of  prop- 
erty in  the  State.  When  the  property  is  out  of  the  State,  there  can  then 
be  no  tax  upon  it  for  which  the  interest  can  be  retained.  The  tax  laws 
of  Pennsylvania  can  have  no  extra-territorial  operation,  nor  can  any  law 
of  that  State,  inconsistent  with  the  terms  of  a contract  made  with  or  pay- 
able to  parties  out  of  the  State,  have  any  effect  upon  the  contract  whilst 
it  is  in  the  hands  of  such  parties  or  other  non-residents.  The  extra-ter- 
ritorial invalidity  of  State  laws  discharging  a debtor  from  his  contracts 
with  citizens  of  other  States,  even  though  made  and  payable  in  the  State 


after  the  passage  of  such  laws,  has  been  judicially  determined  by  this 
Court.  A like  invalidity  must,  on  similar  grounds,  attend  State  legisla- 
tion which  seeks  to  change  the  obligation  of  such  contracts  in  any  par- 
ticular, and  on  stronger  grounds  where  the  contracts  are  made  and  paya- 
ble out  of  the  State.” 


There  are  other  limitations  upon  the  power  of  taxation 
by  the  States  imposed  hy  their  respective  constitutions,  de- 
signed to  secure,  as  far  as  practicable,  an  equal  distribution 
of  the  burdens  of  government,  by  requiring  a uniform 
rate  of  taxation  upon  property  of  the  same  kind,  and  a 
uniform  mode  of  assessment  or  appraisement  of  value. 
Of  these  it  is  not  the  purpose  of  this  narrative  to  speak. 
There  is,  however,  in  the  Fourteenth  Amendment  a clause 
which,  according  to  the  force  attributed  to  it  hy  Judge 
Field,  may  yet  be  invoked  to  prevent  the  imposition  of 
unequal  taxation  by  the  States,  of  which  there  are  so  many 
daily  complaints  throughout  the  country — the  clause  which 
declares  that  no  State  shall  “ deny  to  any  person,  within 
its  jurisdiction,  the  equal  protection  of  the  laws.”  In  his 
opinion  in  the  Virginia  Jury  Cases,  he  contended  that  the 
prohibitions  of  the  Fourteenth  Amendment  being  against 
the  State,  can  only  be  properly  enforced  through  the 
action  of  the  judiciary,  in  like  manner  as  the  prohibition 
against  the  passage  of  a hill  of  attainder  or  an  ex  post  facto 
law,  or  a law  impairing  the  obligation  of  contracts  ; — in 
other  words,  that  a law  of  a State  can  he  annulled  only 
through  the  judiciary,  and  not  hy  criminal  proceedings 
against  its  legislators,  judges,  and  other  officers.  He  also 
contended  that  the  clause  mentioned  applies  only  to  civil 
rights  and  not  to  political  or  social  rights;  and  yet  he  gave 
to  it  an  immense  force  for  the  protection  of  private  rights 
against  arbitrary  and  unequal  legislation  of  the  States. 
ITis  language  is  as  follows : 

“ It  opens  the  Courts  of  the  country  to  every  one,  on  the  same  terms, 
for  the  security  of  his  person  ancl  property,  the  prevention  and  redress 
of  wrongs,  and  the  enforcement  of  contracts  ; it  assures  to  every  one  the 
same  rules  of  evidence  and  modes  of  procedure ; it  allows  no  impedi- 


283 


ments  to  the  acquisition  of  property  and  the  pursuit  of  happiness,  to 
which  all  are  not  subjected  ; it  suffers  no  other  or  greater  burdens  or  charges 
to  be  laid  upon  one  than  such  as  are  equally  borne  by  others  ; and  in  the  ad- 
ministration of  criminal  justice  it  permits  no  different  or  greater  punish- 
ment to  be  imposed  upon  one  than  such  as  is  prescribed  to  all  for  like 
offences.” 

The  clause  was  intended  to  secure  equality  of  right  to 
every  person  within  the  States,  and  this  necessarily  implies 
that  he  shall  not  be  subjected  to  any  greater  burdens  than 
his  fellows.  If  one,  therefore,  is  arbitrarily  taxed  by  a law 
of  a State  at  five  per  cent,  on  the  value  of  his  property, 
while  others  are  taxed  on  the  value  of  the  same  kind  of 
property  only  one  per  cent.,  or  if  he  be  thus  taxed  because 
he  pursues  one  calling  or  trade,  or  because  he  is  black  or 
brown  or  yellow  in  his  color,  whilst  those  of  another  pur- 
suit or  of  a different  color  are  taxed  at  a lower  rate,  lie  is 
subjected  to  an  unequal  share  of  the  public  burdens  and 
may  justly  invoke  the  protection  of  the  amendment 
against  the  action  of  the  State. 

In  People  vs.  Weaver,  where  equality  in  taxation  was 
disregarded  by  a law  of  the  State  of  Xew  York  in  the  face 
of  a law  of  Congress,  the  Supreme  Court  declared  the 
State  law  invalid. — (10  Otto,  539.)  Upon  the  same  prin- 
ciple a State  law  sanctioning  the  imposition  of  unequal 
burdens  must  fall  before  the  constitutional  amendment. 


The  Trust  Character  of  Directors  of  Corporations. 

In  the  preceding  pages,  from  216  to  255  inclusive,  a 
statement  is  made  of  several  opinions  of  Judge  Field  re- 
specting the  powers  and  liabilities  of  corporations.  Dur- 
ing the  past  term,  in  the  case  of  Wardell  vs.  The  Union 
Pacific  Railroad  Company,  he  delivered  another  opinion 
touching  the  obligations  of  the  directors  of  such  bodies 
and  the  fiduciary  character  of  their  office.  The  case  arose 
in  this  way.  The  road  of  the  Union  Pacific  Company 
passes  for  its  entire  length,  from  Omaha,  on  the  Missouri 


284 


m ver,  to  Ogden,  in  Utah,  a distance  of  over  one  thousand 
miles,  through  a country  almost  destitute  of  timber  tit  for 
fuel.  During  its  construction,  however,  large  deposits  of 
coal,  ot  excellent  quality  and  easily  worked,  were  discov- 
ered in  land  along  its  line  from  which  abundant  supplies 
could  be  obtained  for  the  use  of  the  company.  The  en- 
gineers, appointed  to  survey  the  route  for  the  road,  re- 
ported the  existence  of  such  deposits.  In  June,  1868,  one 
Thomas  Warded  made  explorations  for  coal  in  the  lands 
ot  the  company,  and  reported  to  its  managers  the  informa- 
tion which  he  had  thus  acquired,  which  was  confirma- 
tory of  that  previously  obtained  from  the  engineers. 
A contract  was  then  entered  into  between  the  company 
and  himself  and  one  Godfrey,  with  whom  he  had  become 
associated  in  business,  to  furnish  the  company  with  coal 
required  for  its  use.  This  contract,  which  is  dated  July 
16th,  1868,  stipulated  for  exorbitant  prices;  and  by  it  all 
the  coal  lands  of  the  company  were  leased  to  Warded  and 
Godfrey  for  fifteen  years.  The}’  immediately  entered  upon 
the  execution  of  the  contract  and  began  work  on  several 
mines  along  the  line  of  the  road.  Soon  afterwards  God- 
frey transferred  his  interest  in  the  contract  to  Warded.  A 
new  company  was  then  formed  called  the  Wyoming  Coal 
and  Mining  Company,  of  which  the  directors  of  the  Union 
Pacific  Railroad  Company  became  the  chief  shareholders. 
To  this  company  "Warded  assigned  his  contract  without 
any  consideration.  The  company  continued  the  execution 
of  the  contract,  Warded  acting  as  its  superintendent,  sec- 
retary, and  general  manager,  and  delivered  coal  as  needed 
to  the  railroad  company  up  to  March,  1874,  when  the  of- 
ficers and  agents  of  that  company,  by  order  of  its  directors, 
took  forcible  possession  of  tire  mines  and  of  the  books, 
papers,  tools,  and  other  personal  property  of  the  coal  com- 
pany, which  they  continued  to  hold  and  use.  Some 
months  after  this  the  two  companies,  through  their  direc- 
tors, made  a settlement  of  their  matters  of  difference,  by 
which  the  contract  of  July  16th,  1868,  wras  rescinded 


and  one  million  dollars  was  allowed  to  the  coal  com- 
pany. Of  this  million  the  railroad  company  set  apart 
and  tendered  to  Warded  one  hundred  thousand  dollars 
for  his  share.  He,  not  being  satisfied  with  the  settle- 
ment, brought  a suit,  in  his  own  name,  against  the  rail- 
road company,  alleging  as  a reason  that  a majority  of  the 
directors  and  stockholders  of  the  coal  company  were  also 
directors  and  stockholders  of  the  railroad  company,  and 
that  therefore  he  could  obtain  no  relief  by  a suit  in 
the  name  of  the  coal  company.  He  prayed  that  an 
account  might  be  taken  of  the  amount  due  for  the 
coal  delivered  to  the  railroad  company,  for  drawback  on 
freight  from  the  date  of  the  contract,  for  coal  extracted 
from  the  mines  since  their  seizure  and  for  the  property  of 
the  coal  company  taken,  and  for  the  damages  arising  from 
the  attempted  abrogation  of  the  contract.  To  this  suit  the 
railroad  company  set  up,  among  other  things,  that  the  con- 
tract of  July  16th,  1868,  was  a fraud  upon  the  company, 
that  it  was  made  on  the  part  of  the  executive  committee 
of  its  board  of  directors,  a majority  of  whom  were,  by  pre- 
vious agreement,  to  be  equally  interested  with  the  con- 
tractors, and  for  that  reason  its  terms  were  made  so  favor- 
able to  them  and  unfavorable  to  the  company,  as  to  enable 
the  former  to  make  large  gains  at  the  expense  of  the  lat- 
ter; and  that  the  organization  of  the  coal  company  was  a 
mere  device  to  enable  those  directors  to  participate  in  the 
profits;  and  also  that  a settlement  had  been  made  between 
the  two  companies  of  all  their  transactions, 

The  court  below  held  that  the  contract  of  July  16,1868, 
was  a fraud  upon  the  company,  but  that  the  complainant 
was,  apart  from  it,  entitled  to  some  compensation  for  his 
time,  skill,  and  services  while  engaged  in  taking  out  the 
coal,  with  the  return  of  the  money  actually  invested  and 
compensation  for  its  use,  the  amount  to  be  credited  with 
what  he  had  actually  received  out  of  the  business;  and 
that  at  his  election  he  could  have  an  accounting  upon  that 
basis  or  take  the  one  hundred  thousand  dollars  tendered 


286 


by  the  company.  Of  the  alternatives  thus  offered  he 
elected  to  hake  the  one  hundred  thousand  dollars  instead 
of  having  the  accounting  mentioned,  but  appealed  to  the 
Supreme  Court  from  the  decree,  contending  that  the  con- 
tract itself  was  valid,  and  that  he  was  entitled  to  an  ac- 
counting upon  that  hypothesis,  hut  the  judgment  was  there 
affirmed.  Of  the  contract  and  of  the  obligations  of  the  di- 
rectors of  the  railroad  company,  that  Court,  speaking 
through  Judge  Field,  said  as  follows  : 

“ The  evidence  in  the  case  justifies  the  conclusion  of  the  court  below 
as  to  the  nature  of  the  contract  of  July  16th,  1868.  It  was  evidently 
drawn  more  for  the  benefit  of  the  contractors  than  for  the  interest  of  the 
company.  The  extent,  value,  and  accessibility  of  the  coal  deposits  along 
the  line  of  the  road  of  the  company  were,  as  stated  above,  well  known  at 
the  time  to  its  directors,  having  the  immediate  control  and  management 
of  its  business.  Wardell,  the  principal  contractor,  informed  those  with 
whom  he  chiefly  dealt  in  negotiating  the  contract,  that  coal  could  be  de- 
livered to  the  company  at  a cost  of  two  dollars  per  ton,  yet  the  contract, 
which  was  to  remain  in  force  fifteen  years,  stipulated  that  the  company 
should  pay  treble  this  amount  per  ton  for  the  coal  the  first  two  years,  two 
and  a half  times  the  amount  for  the  next  three  years,  twice  the  amount 
for  the  following  four  years,  and  one-half  more  for  the  balance  of  the  time. 
And  lest  these  rates  might  prove  too  little,  the  contract  further  provided 
that  the  sum  paid  should  not  be  less  than  ten  per  cent,  added  to  the  cost 
of  the  coal  to  the  contractors.  These  terms  and  the  leasing  of  all  the 
coal  lands  of  the  company  for  fifteen  years  to  those  parties  upon  a royalty 
of  twenty-five  cents  a ton  for  the  first  nine  years,  and  without  any  royalty 
afterwards  if  the  price  of  the  coal  should  be  reduced  to  three  dollars, 
with  the  stipulation  to  provide  side-tracks  to  the  mines,  and  also  to  fur- 
nish cars  for  transportation  of  coal  for  general  consumption,  and  after 
charging  them  only  what  was  charged  to  others,  to  allow  them  a draw- 
back of  twenty-five  per  cent,  on  the  sums  paid,  gave  to  them  a contract 
of  the  value  of  millions  of  dollars.  These  provisions  would  of  them- 
selves justly  excite  a suspicion  that  the  directors  of  the  railroad  com- 
pany, who  authorized  the  contract  on  its  behalf,  had  been  greatly  de- 
ceived and  imposed  upon,  or  that  they  were  ignorant  of  the  cost  at  which 
the  coal  could  be  taken  from  the  mines  and  delivered  to  the  company. 
But  the  evidence  shows  that  those  directors  were  neither  deceived  nor 
imposed  upon,  nor  were  they  without  information  as  to  the  probable 
cost  of  taking  out  and  delivering  the  coal.  And  what  is  of  more  im- 
portance, it  shows,  as  alleged,  their  previous  agreement  with  the  con- 
tractors for  a joint  interest  in  the  contract,  and,  in  order  that  they  might 
not  appear  as  co-contractors,  that  a corporation  should  be  formed  in 
which  they  should  become  stockholders,  and  to  which  the  contract  should 


be  assigned  ; and  that  this  agreement  was  carried  out  by  the  subsequent 
formation  of  the  Wyoming  Mining  and  Coal  Company  and  their  taking 
stock  in  it.  This  matter  was  so  well  understood  that  when  the  con- 
tractors commenced  their  work  in  developing  the  mines  and  taking 
out  the  coal,  they  kept  their  accounts  in  the  name  of  the  proposed 
company,  though  no  such  company  was  organized  until  months  after- 
wards. 

“ It  hardly  requires  argument  to  show  that  the  scheme  thus  designed  to 
enable  the  directors,  who  authorized  the  contract,  to  divide  with  the 
contractors  large  sums  which  should  have  been  saved  to  the  company, 
was  utterly  indefensible  and  illegal.  Those  directors,  constituting  the  ex- 
ecutive committee  of  the  board,  were  clothed  with  power  to  manage  the 
affairs  of  the  company  for  the  benefit  of  its  stockholders  and  creditors. 
Their  character  as  agents  forbade  the  exercise  of  their  powers  for  their 
own  personal  ends  against  the  interest  of  the  company.  They  were 
thereby  precluded  from  deriving  any  advantage  from  contracts  made  by 
their  authority  as  directors,  except  through  the  company  for  which  they 
acted.  Their  position  was  one  of  great  trust,  and  to  engage  in  any  matter 
for  their  personal  advantage  inconsistent  with  it  was  to  violate  their  duty 
and  to  commit  a fraud  upon  the  company. 

“ It  is  among  the  rudiments  of  the  law  that  the  same  person  cannot 
act  for  himself  and  at  the  same  time,  with  respect  to  the  same  matter, 
as  the  agent  for  another  whose  interests  are  conflicting.  Thus  a person 
cannot  be  a purchaser  of  property  and  at  the  same  time  the  agent  of  the 
vendor.  The  two  positions  impose  different  obligations,  and  their  union 
would  at  once  raise  a conflict  between  interest  and  duty ; and  1 consti- 
tuted as  humanity  is,  in  the  majority  of  cases  duty  would  be  overcome 
in  the  struggle.’ — (Marsh  vs.  Whitmore,  21  Wallace,  183.)  The  law, 
therefore,  will  always  condemn  the  transactions  of  a party  on  his  own 
behalf  when,  in  respect  to  the  matter  concerned,  he  is  the  agent  of  others, 
and  will  relieve  against  them  whenever  their  enforcement  is  seasonably 
resisted.  Directors  of  corporations,  and  all  persons  who  stand  in  a fiduci- 
ary relation  to  other  parties,  and  are  clothed  with  power  to  act  for  them, 
are  subject  to  this  rule;  they  are  not  permitted  to  occupy  a position 
which  will  conflict  with  the  interest  of  parties  they  represent  and  are 
bound  to  protect.  They  cannot,  as  agents  or  trustees,  enter  into  or  au- 
thorize contracts  on  behalf  of  those  for  whom  they  are  appointed  to  act, 
and  then  personally  participate  in  the  benefits.  Hence  all  arrangements 
by  directors  of  a railroad  company,  to  secure  an  undue  advantage  to 
themselves  at  its  expense,  by  the  formation  of  a new  company  as  an  aux- 
iliary to  the  original  one,  with  an  understanding  that  they,  or  some  of 
them,  shall  take  stock  in  it,  and  then  that  valuable  contracts  shall  be 
given  to  it,  in  the  profits  of  which  they,  as  stockholders  in  the  new  com- 
pany, are  to  share,  are  so  many  unlawful  devices  to  enrich  themselves  to 
the  detriment  of  the  stockholders  and  creditors  of  the  original  company, 
and  will  be  condemned  whenever  properly  brought  before  the  Courts  for 


consideration. — (Great  Luxembourg  Co.  vs.  Magnay,  25  Beavan,  .r)86; 
Benson  vs.  Heathorn,  1 Young  & Coll.,  326;  Flint  & Pere  Marquette  R. 
R.  Co.  vs.  Dewey,  14  Michigan,  477  ; European  & N.  American  R.  R.  Co. 
vs.  Poor,  59  Maine,  277 ; and  Drury  vs.  Cross,  7 Wall.,  299.) 

“ The  scheme  disclosed  here  has  no  feature  which  relieves  it  of  its 
fraudulent  character,  and  the  contract  of  July  16,  1868,  which  was  an  es- 
sential part  of  it,  must  go  down  with  it.  It  was  a fraudulent  proceeding 
on  the  part  of  the  directors  and  contractors  who  devised  and  carried  it 
into  execution,  not  only  against  the  company,  but  also  against  the  gov- 
ernment, which  had  largely  contributed  to  its  aid  by  the  loan  of  bonds 
and  by  the  grant  of  lands.  By  the  very  terms  of  the  charter  of  the  com- 
pany five  per  cent,  of  its  net  earnings  were  to  be  paid  to  the  government. 
Those  earnings  were  necessarily  reduced  by  every  transaction  which 
took  from  the  company  its  legitimate  profits.  It  is  true  that  some  of  the 
directors,  who  approved  of  or  did  not  dissent  from  the  contract,  early 
stated  that  they  held  their  stock  in  the  coal  company  for  the  benefit  of 
the  railroad  company,  and  transferred  it,  or  were  ready  to  transfer  it,  to 
the  latter ; but  the  majority  expressed  such  a purpose  only  when  the 
character  and  terms  of  the  contract  became  known  and  they  were  desir- 
ous to  screen  themselves  from  censure  for  their  conduct. 

“ The  complainant,  therefore,  can  derive  no  benefit  from  the  contract 
thus  tainted,  or  sustain  any  claim  against  the  railroad  company  for  its 
repudiation.” — (13  Otto.) 


The  Use  of  Running  Waters  on  the  Public  Lands. 

When  it  was  known  that  gold  had  been  discovered  in 
California,  and  existed  in  such  form  and  quantity  as  to  re- 
ward individual  exploration  and  labor,  an  immense  immi- 
gration set  in  for  the  country.  Gold-seekers  came  from 
all  parts  of  the  world,  and  in  such  numbers  as  to  swell 
the  population  in  three  or  four  years  from  a few  thou- 
sands to  over  half  a million.  A great  number  of  these — 
perhaps  one-third — remained  in  the  cities  and  engaged  in 
commerce,  or  settled  upon  the  fertile  lands  in  the  valleys 
and  cultivated  the  soil,  or  raised  cattle  from  the  rich  pas- 
turage afforded.  The  greater  portion  spread  over  the 
mineral  region,  which  was  chiefly  in  the  Sierra  Nevada 
Mountains.  The  title  to  the  whole  of  the  lands  compos- 
ing this  region  was  in  the  United  States,  and  no  law  had 


289 


been  passed  which  provided  for  their  occupation  and  pur- 
chase. The  rights  which  the  miners  asserted  were  merely 
possessory,  and  to  protect  each  other  in  their  psssession 
and  in  extracting  gold  from  the  lands,  they  were  com- 
pelled to  adopt  certain  rules  for  their  government.  The 
character,  justice,  and  wisdom  of  the  rules  established  by 
them  in  different  localities,  are  fully  stated  in  an  opinion 
delivered  by  Judge  Field  in  the  Supreme  Court,  in  the 
case  of  Jennison  vs.  Kirk,  (8  Otto,  457,)  an  extract  of 
which  is  given  on  pages  6,  7,  and  8 of  this  volume. 

In  working  the  mines  water  was  a necessity;  without  it 
gold  could  not  be  separated  from  the  earth  or  rock  in 
which  it  was  buried.  The  doctrines  of  the  common  law 
relating  to  the  rights  of  riparian  proprietors  were  not  ap- 
plicable to  the  conditions  and  wants  of  the  miners.  They 
accordingly  adopted  rules  for  the  regulation  of  the  pos- 
session and  use  of  water,  as  they  had  done  for  the  posses- 
sion and  working  of  their  mining  claims.  These  regula- 
tions controlled  the  disposition  of  properties  of  the  value 
of  many  millions. 

The  same  general  system  of  regulations,  so  intrinsically 
just  were  they  deemed,  was  established  by  miners  in  the 
territory  east  of  the  Sierra  Nevada  Mountains — in  Ne- 
vada, Montana,  and  Idaho;  indeed,  wherever  the  precious 
metals  were  found.  Questions  arising  under  them  were 
constantly  before  the  local  Courts,  and  in  some  instances 
found  their  way  to  the  Supreme  Court  of  the  United  States. 

In  Atchison  vs.  Peterson,*  which  was  before  that  Court 
in  1874,  the  question  was  presented  as  to  the  right,  from 
prior  appropriation,  to  the  use  for  mining  purposes  of  the 
water  of  a stream  without  deterioration  in  quality  and 
value.  The  suit  was  brought  to  restrain  the  defendants 
from  carrying  on  certain  mining  work  on  a creek  in  the 
Territory  of  Montana,  on  the  alleged  ground  that  the 
water,  diverted  by  the  complainants  from  the  stream  for 
mining  purposes,  was,  by  such  work,  thus  deteriorated. 


* 20  Wall.,  507. 


The  complainants  were  the  owners  of  two  ditches  or  canals, 
constructed  at  a cost  of  .$117,000,  by  which  the  creek  was 
tapped  and  the  water  diverted  and  conveyed  a distance  of 
eighteen  miles  to  certain  mining  districts,  and  there  sold 
to  miners.  At  a point  about  fifteen  miles  above  the  place 
where  the  creek  was  thus  tapped  the  defendants  were  work- 
ing mining  ground,  which  they  had  acquired  subsequently 
to  the  time  when  the  complainants  commenced  the  con- 
struction of  the  ditches.  In  some  places  in  their  work  the 
defendants  washed  down  the  earth  from  the  side  of  the 
hills  bordering  on  the  stream;  in  other  places  they  exca- 
vated the  earth,  and  threw  such  portions  as  were  supposed 
to  contain  gold  into  sluices,  upon  which  the  water  was 
turned.  The  earth  from  the  washings  on  the  hillsides, 
and  from  the  sluices,  was  carried  into  the  creek  and  af- 
fected its  whole  current,  filling  the  water  to  some  extent 
with  mud,  sand,  and  sediment.  The  evidence  as  to  the 
extent  of  the  deterioration  was  conflicting,  but  the  great 
preponderance  of  it  was  to  the  effect  that  the  injury  in 
quality  from  this  cause,  at  the  point  where  the  complain- 
ants tapped  the  stream,  was  so  slight  as  not,  in  any  mate- 
rial extent,  to  impair  the  value  of  the  water  for  mining, 
or  to  render  it  less  salable  to  the  miners  at  the  places 
where  it  was  carried. 

The  District  Court  denied  the  injunction,  and  the  Su- 
preme Court  of  the  Territory  affirmed  the  decree,  and  the 
case  was  taken  to  the  Supreme  Court.  In  affirming  the 
decree  that  Court,  speaking  through  Judge  Field,  said  as 
follows: 

“ By  the  custom  which  has  obtained  among  miners  in  the  Pacific  States 
and  Territories,  where  mining  for  the  precious  metals  is  had  on  the  pub- 
lic lands  of  the  United  States,  the  first  appropriator  of  mines,  whether  in 
placers,  veins,  or  lodes,  or  of  waters  in  the  streams  on  such  lauds  for  min- 
ing purposes,  is  held  to  have  a better  right  than  others  to  work  the  mines 
or  use  the  waters.  The  first  appropriator  who  subjects  the  property  to 
use,  or  takes  the  necessary  steps  for  that  purpose,  is  regarded,  except  as 
against  the  government,  as  the  source  of  title  in  all  controversies  relating 
to  the  property.  As  respects  the  use  of  water  for  mining  purposes,  the 
doctrines  of  the  common  law  declaratory  of  the  rights  of  riparian  owners 


291 


were,  at  an  early  day,  after  the  discovery  of  gold,  found  to  be  inapplica- 
ble or  applicable  only  in  a very  limited  extent  to  the  necessities  of  the 
miners,  and  inadequate  to  their  protection.  By  the  common  law  the  ri- 
parian owner  on  a stream  not  navigable,  takes  the  land  to  the  centre  of 
the  stream,  and  such  owner  has  the  right  to  the  use  of  the  water  flowing 
over  the  land  as  an  incident  to  his  estate.  And  as  all  such  owners  on  the 
same  stream  have  an  equality  of  right  to  the  use  of  tire  water,  as  it  nat- 
urally flows,  in  quality,  and  without  diminution  in  quantity,  except  so 
far  as  such  diminution  may  be  created  by  a reasonable  use  of  the  water 
for  certain  domestic,  agricultural,  or  manufacturing  purposes,  there  could 
not  be,  according  to  that  law,  any  such  diversion  or  use  of  the  water  by 
one  owner  as  would  work  material  detriment  to  any  other  owner 
below'  him.  Nor  could  the  water  by  one  owner  be  so  retarded  in  its  flow 
as  to  be  thrown  back  to  the  injury  of  another  owner  above  him.  ‘It  is 
wholly  immaterial,’  says  Mr.  Justice  Story,  in  Tyler  vs.  Wilkinson, 
‘ whether  the  party  be  a proprietor  above  or  below  in  the  course  of  the 
river;  the  right  being  common  to  all  the  proprietors  on  the  river,  no  one 
has  a right  to  diminish  the  quantity  which  will,  according  to  the  natural 
curreut,  flow  to  the  proprietor  below,  or  to  throw  it  back  upon  a proprie- 
tor above.  This  is  the  necessary  result  of  the  perfect  equality  of  right 
among  all  the  proprietors  of  that  which  is  common  to  all.’*  ‘ Every  pro- 
prietor of  lauds  on  the  banks  of  a river,’  says  Kent,  ' has  naturally  an 
equal  right  to  the  use  of  the  water  which  flows  in  the  stream  adjacent  to 
his  lands,  as  it  was  wont  to  run  ( eurrere  solebat ) without  diminution  or 
alteration.  No  proprietor  has  a right  to  use  the  water  to  the  prejudice 
of  other  proprietors  above  or  below  him,  unless  he  has  a prior  right  to 
divert  it,  or  a title  to  some  exclusive  enjoyment.  He  has  no  property  in 
the  water  itself,  but  a simple  usufruct  while  it  passes  along.  Aqua  cur- 
rit  ct  debet  eurrere  ut  eurrere  solebat.  Though  he  may  use  the  water  while 
it  runs  over  his  land  as  an  incident  to  the  land,  he  cannot  unreasonably 
detain  it  or  give  it  another  direction,  and  he  must  return  it  to  its  ordinary 
channel  when  it  leaves  his  estate.  Without  the  consent  of  the  adjoining 
proprietors  he  cannot  divert  or  diminish  the  quantity  of  the  water  which 
would  otherwise  descend  to  the  proprietors  below,  nor  throw  the  water 
back  upon  the  proprietors  above  without  a grant  or  an  uninterrupted  en- 
joyment of  twenty  years,  which  is  evidence  of  it.  This  is  the  clear  and 
settled  doctrine  on  the  subject,  and  all  the  difficulty  which  arises  cousists 
in  the  application.’! 

“ This  equality  of  right  among  all  the  proprietors  on  the  same  stream 
would  have  been  incompatible  with  any  extended  diversion  of  the  water 
by  one  proprietor,  and  its  conveyance  for  mining  purposes  to  points  from 
which  it  could  not  be  restored  to  the  stream.  But  the  government 
being  the  sole  proprietor  of  all  the  public  lands,  whether  bordering  on 
streams  or  otherwise,  there  was  no  occasion  for  the  application  of  the  com- 


20 


* 4 Mason,  379. 


f3  Kent’s  Comm.,  439. 


292 


mon-law  doctrine  of  riparian  proprietorship  with  respect  to  the  waters  of 
those  streams.  The  government,  by  its  silent  acquiescence,  assented  to 
the  general  occupation  of  the  public  lands  for  mining,  and,  to  encourage 
their  free  and  unlimited  use  for  that  purpose,  reserved  such  lands  as 
were  mineral  from  sale  and  the  acquisition  of  title  by  settlement.  And 
be  who  first  connects  his  own  labor  with  property  thus  sit  uated  and  open  to 
general  exploration,  does,  in  natural  justice,  acquire  a better  right  to  its 
use  and  enjoyment  than  others  who  have  not  given  such  labor.  So  the  v 
miners  on  the  public  lands  throughout  the  Pacific  States  and  Territories 
by  their  customs,  usages,  and  regulations  everywhere  recognized  the  in- 
herent justice  of  this  principle,  and  the  principle  itself  was  at  an  early 
period  recognized  by  legislation  and  enforced  by  the  courts  in  those  States 
and  Territories.  In  Irwin  vs.  Phillips,*  a case  decided  by  the  Supreme 
Court  of  California  in  January,  1855,  this  subject  was  considered.  After 
stating  that  a system  of  rules  had  been  permitted  to  grow  up  with  re- 
pect  to  mining  on  the  public  lands  by  the  voluntary  action  and  assent  of 
the  population,  whose  free  and  unrestrained  occupation  of  the  mineral 
region  had  been  tacitly  assented  to  by  the  federal  government,  and  heartily 
encouraged  by  the  expressed  legislative  policy  of  the  State,  the  Court 
said  : ‘ If  there  are,  as  must  be  admitted,  many  things  connected  with  this 
system  which  are  crude  and  undigested,  and  subject  to  fluctuation  and 
dispute,  there  are  still  some  which  a universal  sense  of  necessity  and 
propriety  have  so  firmly  fixed  as  that  they  have  come  to  be  looked  upon 
as  having  the  force  and  effect  of  res  adjudicata.  Among  these  the  most 
important  are  the  rights  of  miners  to  be  protected  in  their  selected  local- 
ities, and  the  rights  of  those  who,  by  prior  appropriation,  have  taken  the 
waters  from  their  natural  beds,  and  by  costly  artificial  works  have  con- 
ducted them  for  miles  over  mountains  and  ravines  to  supply  the  neces- 
sities of  gold  diggers,  and  without  which  the  most  important  interests  of 
the  mineral  region  would  remain  without  development.  So  fully  recog- 
nized have  become  these  rights,  that  without  any  specific  legislation  con- 
ferring or  confirming  them,  they  are  alluded  to  and  spoken  of  in  various 
acts  of  the  Legislature  in  the  same  manner  as  if  they  W'ere  rights  which 
had  been  vested  by  the  most  distinct  expression  of  the  will  of  the  law- 
makers.’ 

“ This  doctrine  of  right  by  prior  appropriation,  was  recognized  by  the 
legislation  of  Congress  in  1866. f The  act  granting  the  right  of  way  to 
ditch  and  canal  owners  over  the  public  lands,  and  for  other  purposes,  passed 
on  the  26th  of  July  of  that  year,  in  its  ninth  section  declares  ‘ that  when- 
ever, by  priority  of  possession,  rights  to  the  use  of  water  for  mining, 
agricultural,  manufacturing,  or  other  purposes,  have  vested  and  accrued, 
and  the  same  are  recognized  and  acknowledged  by  the  local  customs,  laws, 
and  decisions  of  courts,  the  possessors  and  owners  of  such  vested  rights 
shall  be  maintained  and  protected  in  the  same.’ 


* 5 Cal,,  140, 


f 14  Stats,  at  Large,  253, 


293 


“ The  right  to  water  by  prior  appropriation,  thus  recognized  and  estab- 
lished as  the  law  of  miners  on  the  mineral  lands  of  the  public  domain, 
is  limited  in  every  case,  in  quantity  and  quality,  by  the  uses  for  which 
the  appropriation  is  made.  A different  use  of  the  water  subsequently 
does  not  affect  the  right : that  is  subject  to  the  same  limitations,  what- 
ever the  use.  The  appropriation  does  not  confer  such  an  absolute  right 
to  the  body  of  the  water  diverted  that  the  owner  can  allow  it,  after  its 
diversion,  to  run  to  waste,  and  prevent  others  from  using  it  for  mining 
or  other  legitimate  purposes ; nor  does  it  confer  such  a right  that  he  can 
insist  upon  the  flow  of  the  water  without  deterioration  iu  quality,  where 
such  deterioration  does  not  defeat  nor  impair  the  uses  to  which  the  water 
is  applied. 

“Such  was  the  purport  of  the  ruling  of  the  Supreme  Court  of  Cali- 
fornia in  Butte  Canal  and  Ditch  Company  vs.  Vaughn,*  where  it  was 
held  that  the  first  appropriator  had  only  the  right  to  insist  that  the  water 
should  be  subject  to  his  use  and  enjoyment  to  the  extent  of  his  original 
appropriation,  and  that  its  quality  should  not  be  impaired  so  as  to  de- 
feat the  purpose  of  that  appropriation.  To  this  extent,  said  the  Court, 
his  rights  go,  and  no  farther;  and  that,  in  subordination  to  them,  subse- 
quent appropriators  may  use  the  channel  and  waters  of  the  stream,  and 
mingle  with  its  waters  other  waters,  and  divert  them  as  often  as  they 
choose  ; that  whilst  enjoying  his  original  rights,  the  first  appropriator  had 
no  cause  of  complaint.  In  the  subsequent  case  of  Ortman  vs.  Dixon  f 
the  same  Court  held  to  the  same  purport,  that  the  measure  of  the  right 
of  the  first  appropriator  of  the  water,  as  to  extent,  follows  the  nature  of 
the  appropriation,  or  the  uses  for  which  it  is  taken. 

“ What  diminution  of  quantity,  or  deterioration  in  quality,  will  consti- 
tute an  invasion  of  the  rights  of  the  first  appropriator,  will  depend  upon 
the  special  circumstances  of  each  case,  considered  with  reference  to  the 
uses  to  which  the  water  is  applied.  A slight  deterioration  in  quality 
might  render  the  water  unfit  for  drink  or  domestic  purposes,  whilst  it 
would  not  sensibly  impair  its  value  for  mining  or  irrigation.  In  all  con- 
troversies, therefore,  between  him  and  parties  subsequently  claiming  the 
water,  the  question  for  determination  is  necessarily  whether  his  use  and 
enjoyment  of  the  water,  to  the  extent  of  his  original  appropriation,  have 
been  impaired  by  the  acts  of  the  defendant.  But  whether,  upon  a peti- 
tion or  bill  asserting  that  his  prior  rights  have  been  thus  invaded,  a Court 
of  Equity  will  interfere  to  restrain  the  acts  of  the  party  complained  of, 
will  depend  upon  the  character  and  extent  of  the  injury  alleged,  whether 
it  be  irremediable  in  its  nature,  whether  an  action  at  law  would  afford 
adequate  remedy,  whether  the  parties  are  liable  to  respond  for  the  dam- 
ages resulting  from  the  injury,  and  other  considerations  which  ordinarily 
govern  a Court  of  Equity  in  the  exercise  of  its  preventive  process  of  in- 
junction.” 


* 11  Cal.,  143.  See,  also,  Lobdell  vs.  Simpson,  2 Nev.,  274. 
f 13  Cal.,  33. 


294 


The  Court  then  proceeded  to  apply  the  principles  thus 
stated  to  the  solution  of  the  questions  presented,  and 
affirmed  the  decree. 

In  Base}'-  vs.  Gallagher  * the  question  arose  whether  a 
right  to  running  waters  on  the  public  lands  of  the  United 
States  for  purposes  of  irrigation  could  be  acquired  by  prior 
appropriation  as  against  parties  not  having  the  title  of  the 
government.  The  District  and  Supreme  Courts  of  Mon- 
tana having  sustained  the  affirmative  of  this  question,  the 
case  in  which  it  arose  was  brought  before  the  Supreme 
Court  of  the  United  States.  In  giving  its  judgment  the 
Court  referred  to  Atchison  vs.  Peterson,  above  mentioned, 
which  was  decided  at  the  same  term,  stated  what  had  been 
held  in  that  case,  and  then,  speaking  through  Judge  Field, 
said  as  follows: 

“The  views  there  expressed  and  the  rulings  made  are  equally  applica- 
ble to  the  use  of  water  on  the  public  lands  for  purposes  of  irrigation. 
No  distinction  is  made  in  those  States  and  Territories  [of  the  Pacific 
Coast]  by  the  custom  of  miners  or  settlers,  or  by  the  Courts,  in  the  rights 
of  the  first  appropriator  from  the  use  made  of  the  water,  if  the  use  be  a 
beneficial  one. 

“ In  the  case  of  Tartar  vs.  The  Spring  Creek  Water  and  Mining  Com- 
pany, decided  in  1855,  the  Supreme  Court  of  California  said  : ‘ The  cur- 

rent of  decisions  of  this  Court  go  to  establish  that  the  policy  of  this 
State,  as  derived  from  her  legislation,  is  to  permit  settlers  in  all  capacities 
to  occupy  the  public  lands,  and  by  such  occupation  to  acquire  the  right 
of  undisturbed  enjoyment  against  all  the  world  but  the  true  owner.  In 
evidence  of  this,  acts  have  been  passed  to  protect  the  possession  of  agri- 
cultural lands  acquired  by  mere  occupancy ; to  license  miners;  to  pro- 
vide for  the  recovery  of  mining  claims  ; recognizing  canals  and  ditches 
which  were  known  to  divert  the  water  of  streams  from  their  natural 
channel  for  mining  purposes ; and  others  of  like  character.  This  pol- 
icy has  been  extended  equally  to  all  pursuits,  and  no  partiality  for  one 
over  another  has  been  evinced,  except  in  the  single  case  where  the  rights 
of  the  agriculturalist  are  made  to  yield  to  those  of  the  miner  where 

gold  is  discovered  in  his  land The  policy  of  the  exception  is 

obvious.  Without  it  the  entire  gold  region  might  have  been  inclosed 
in  large  tracts,  under  the  pretence  of  agriculture  and  grazing,  and  event- 
ually what  would  have  sufficed  as  a rich  bounty  to  many  thousands 
would  be  reduced  to  the  proprietorship  of  a few.  Aside  from  this  the 
legislation  and  decisions  have  been  uniform  in  awarding  the  right  of 


*20  Cal.,  671. 


295 


peaceable  enjoyment  to  the  first  occupant,  either  of  the  land  or  of  any- 
thing incident  to  the  land.’* 

“ Ever  since  that  decision  it  has  been  held  general!}7  throughout  the 
Pacific  States  and  Territories  that  the  right  to  water  by  prior  appropria- 
tion for  any  beneficial  purpose  is  entitled  to  protection.  Water  is  di- 
verted to  propel  machinery  in  Hour-mills  and  saw-mills,  and  to  irrigate 
land  for  cultivation,  as  well  as  to  enable  miners  to  work  their  mining 
claims ; and  in  all  such  cases  the  right  of  the  first  appropriator,  exercised 
within  reasonable  limits,  is  respected  and  enforced.  We  say  within  rea- 
sonable limits,  for  this  right  to  water,  like  the  right  by  prior  occupancy 
to  mining  ground  or  agricultural  land,  is  not  unrestricted.  It  must  be 
exercised  with  reference  to  the  general  condition  of  the  country  and  the 
necessities  of  the  people,  and  not  so  as  to  deprive  a whole  neighborhood 
or  community  of  its  use,  and  vest  an  absolute  monopoly  in  a single  indi- 
vidual. The  act  of  Congress  of  1866  recognizes  the  right  to  water  by 
prior  appropriation  for  agricultural  and  manufacturing  purposes,  as  well 
as  for  mining.  Its  language  is : ‘ That  whenever  by  priority  of  posses- 
sion rights  to  the  use  of  wTater  for  mining,  agricultural,  manufacturing, 
or  other  purposes  have  vested  and  accrued,  and  the  same  are  recognized 
and  acknowledged  by  the  local  customs,  laws,  and  decisions  of  courts, 
the  possessors  and  owners  of  such  vested  rights  shall  be  maintained  and 
protected  in  the  same.’ 

“ It  is  evident  that  Congress  intended,  although  the  language  used  is 
not  happy,  to  recognize  as  valid  the  customary  law  with  respect  to  the 
use  of  water,  which  had  grown  up  among  the  occupants  of  the  public 
land  under  the  peculiar  necessities  of  their  condition  ; and  that  law  may 
be  shown  by  evidence  of  the  local  customs,  or  by  the  legislation  of  the 
State  or  Territory,  or  the  decisions  of  the  courts.  The  union  of  the  three 
conditions,  in  any  particular  case,  is  not  essential  to  the  perfection  of  the 
right  by  priority  ; and  in  case  of  conflict  between  a local  custom  and  a 
statutory  regulation,  the  latter,  as  of  superior  authority,  must  necessarily 
control.” 


* Per  Heydenfeldt,  J.,  5 California,  397. 


296 


CASES  IN  THE  CIRCUIT  COURT  OF  THE  UNITED 
STATES  FOR  THE  DISTRICT  OF  CALIFORNIA. 


As  mentioned  in  tlie  preceding  pages,  Judge  Field,  upon 
his  appointment,  was  assigned  to  the  circuit  composed  of 
the  Pacific  States,  California  and  Oregon,  to  which  Nevada, 
on  her  becoming  a State,  was  added.  It  was  his  duty  to 
attend  the  sessions  of  the  Supreme  Court  at  Washington 
in  the  winter,  and  to  hold  the  Circuit  Court  in  his  circuit 
in  summer.  Until  the  passage  of  the  act  of  1869,  pro- 
viding for  the  appointment  of  Circuit  Judges,  the  Circuit 
Court,  in  his  absence,  was  held  by  the  District  Judge  of 
the  district.  Since  then  he  has  only  been  required  to  at- 
tend a term  in  each  district  of  his  circuit  once  in  two 
years.  Pie  has,  however,  visited  the  circuit  every  year, 
until  the  present  one  (1881),  since  his  appointment,  and 
has  generally  held  court  in  all  its  districts. 

rIhe  cases  brought  before  the  Circuit  Court  have  not 
only  been  of  the  variety  and  importance,  which  have  gen- 
erally characterized  the  litigation  in  the  Federal  Courts 
of  other  circuits,  but  many  of  them  have  had  special  inter- 
est, arising  either  from  accidental  circumstances  or  circum- 
stances peculiar  to  the  coast. 

United  States  vs.  Greathouse. 

At  the  first  term  of  the  circuit  at  which  Judge  Field 
presided,  after  his  appointment,  the  case  of  the  United 
States  vs.  Greathouse  and  others,  was  tried.  Growing  out 
of  the  civil  war,  then  pending,  it  excited  unusual  interest 


297 


throughout  the  country.  Its  history  is  briefly  this.  In 
March,  1863,  the  schooner  J.  M.  Chapman  was  seized 
in  the  harbor  of  San  Francisco  by  the  United  States  rev- 
enue officers,  while  sailing,  or  about  to  sail,  on  a cruise,  in 
the  service  of  the  Confederate  States,  against  the  commerce 
of  the  United  States,  and  the  leaders  of  the  expedition, 
named  Greathouse,  Ilarpending,  Rubery,  Law,  and  Libby, 
were  indicted  under  the  act  of  Congress  of  July  17th, 
1862,  for  engaging  in  and  giving  aid  and  comfort  to  the 
then  existing  rebellion  against  the  government  of  the 
United  States.  The  case  was  called  for  trial  at  the  Octo- 
ber term  of  1863.  A nolle  prosequi  was  entered  as  to  Law 
and  Libby,  and  they  became  witnesses  for  the  prosecution. 

Their  testimony  and  that  of  others  showed  that  liar- 
pending,  a native  of  Kentucky,  and  Rubery,  a native  of 
England,  had  for  some  time  contemplated  the  fitting  out 
of  a privateer  at  San  Francisco,  for  the  purpose  of  taking 
several  of  the  mail  steamships  plying  between  that  port 
and  Panama,  and  other  vessels.  With  this  object  in  view, 
Harpending  had  gone  across  the  country  to  Richmond, 
Virginia,  and  procured  from  Jefferson  Davis,  the  Presi- 
dent of  the  Confederate  States,  a letter  of  marque,  au- 
thorizing him  to  prey  upon  the  commerce  of  the  United 
States,  and  to  burn,  board,  or  take  any  vessel  of  their  cit- 
izens; and  also  a letter  of  instructions  directing  him  how 
to  act,  and  containing  the  form  of  a bond,  in  ease  any 
prize  taken  should  be  bonded.  Upon  his  return  to  San 
Francisco  he  and  Rubery  made  arrangements  for  the  pur- 
chase of  a vessel  which  would  suit  their  purpose;  but  these 
arrangements  afterwards  failed,  on  account  of  the  dishonor 
of  the  drafts  drawn  for  the  purchase-money  by  Rubery, 
and  the  consequent  want  of  funds.  They  also  made  a 
voyage  to  Cerros  Island  for  the  purpose  of  examining  into 
its  fitness  as  a depot  and  as  a rendezvous  whence  to  attack 
the  steamers  going  to  Panama. 

In  January  or  February,  1863,  Harpending  made  the 
acquaintance,  at  San  Francisco,  of  Law,  a ship  captain ; 


broached  to  him  the  project  of  fitting  out  a privateer; 
stated  what  had  been  done;  exhibited  his  letter  of  marque 
and  instructions;  solicited  him  to  enter  into  the  enterprise 
and  assist  in  procuring  a vessel;  and  said,  among  other 
things,  that  if  he  had  succeeded  in  carrying  out  his  pre- 
vious arrangements,  he  could  easily  have  taken  three  of 
the  mail  steamers.  Law  agreed  to  take  part  in  the  scheme, 
and  soon  afterwards  pointed  out  the  schooner  J.  M.  Chap- 
man, a vessel  of  about  ninety  tons  burden  and  a fast  sailer, 
as  well  adapted  for  the  intended  cruise.  Several  meetings 
in  reference  to  the  subject  took  place  between  Harpend- 
ing, Rubery,  Law,  and  Greathouse,  (who  had  been  intro- 
duced by  Harpending  to  Law  as  a capitalist,)  and  the  re- 
sult was  that  Greathouse  purchased  the  schooner,  and  fur- 
nished money  to  procure  arms,  ammunition,  and  stores, 
and  to  engage  a mate  and  a crew.  The  next  morning 
Law  took  charge  of  the  schooner,  moved  it  to  a wharf  at 
the  city  front,  informed  Libby  of  the  project,  and  induced 
him  to  go  as  mate,  and  engaged  four  seamen  and  a cook. 

All  this  time  Greathouse  gave  out  that  he  was  acting  in 
the  interest  of  the  “ Liberal  Party  ” in  Mexico,  and  under 
this  pretext,  arms  and  ammunition  wTere  purchased,  con- 
sisting of  two  brass  rifled  twelve-pounders,  shells,  fuse, 
powder,  muskets,  pistols,  lead,  caps,  and  knives.  These 
were  packed  in  cases  marked  “ oil  mill  ” and  “ ma- 
chinery,” and  shipped  as  quietly  as  possible,  and  there  was 
also  shipped  a number  of  uniforms,  such  as  are  usually 
worn  by  men  on  vessels  of  war.  A large  amount  of  lum- 
ber was  also  purchased  and  shipped,  with  which  to  con- 
struct berths,  a prison  room,  and  a lower  deck.  The  in- 
tention of  the  parties  was  to  sail  from  San  Francisco  on 
Sunday  the  loth  of  March,  1863,  to  the  island  of  Guada- 
lupe, which  lies  some  three  hundred  miles  off  the  coast  of 
California;  there  land  Harpending  and  the  fighting  men, 
who  were  to  be  shipped  on  the  night  of  Saturday  the  14th; 
thence  proceed  to  Manzanillo,  and  discharge  such  freight 
as  might  be  taken ; then  return  to  Guadalupe,  and  fit  the 


299 


schooner  for  privateering  purposes;  then  proceed  again  to 
Manzanillo,  where  the  men  were  to  be  enrolled  and  their 
names  inserted  in  the  letter  of  marque,  a copy  of  which 
was  thereupon  to  be  forwarded  to  the  government  of  the 
Confederate  States,  It  was  their  plan  first  to  capture  a 
steamer  bound  from  San  Francisco  to  Panama,  on  its  arrival 
at  Manzanillo,  land  its  passengers,  and  with  the  steamer 
thus  taken  capture  a second  steamer;  next  to  seize  a ves- 
sel from  San  Francisco,  then  engaged  in  recovering  treas- 
ure from  the  wreck  of  the  steamer  Golden  Gate;  thence 
to  go  to  the  Chincha  Islands,  and  burn  vessels  there  be- 
longing to  citizens  of  the  United  States,  and  thence  to 
proceed  to  the  China  Sea,  and  finally  into  the  Indian 
Ocean.  There  they  expected  to  join  Admiral  Semmes  of 
the  Confederate  Navy.  In  pursuance  of  this  plan,  and 
to  prevent  suspicion,  the  schooner  was  “ put  up  ” for  Man- 
zanillo. A partial  cargo  was  shipped  on  board,  and  Law 
cleared  at  the  custom-house  for  that  port,  signing  and 
swearing  to  a false  manifest.  On  the  night  of  March  14th, 
in  accordance  with  the  scheme  arranged,  all  the  partici- 
pants went  on  board.  Fifteen  persons,  who  had  been  em- 
ployed by  Harpending  as  privateersmen,  were  placed  in 
the  hold  in  an  open  space  left  for  them  among  the  cargo, 
directly  under  the  main  hatch.  The  only  person  absent 
Avas  Law,  who  remained  on  shore  with  the  understanding 
that  he  should  be  on  hand  before  morning.  It  afterwards 
appeared  that  he  had  became  intoxicated,  and  did  not  get 
down  to  keep  his  appointment  until  after  the  schooner  had 
been  seized. 

During  the  evening,  Rubery  had  heard  rumors  that  the 
vessel  was  to  be  overhauled,  and  as  the  morning  approached 
and  Law  did  not  appear,  he  proposed  sailing  without  him. 
At  daylight,  Law  being  still  absent,  Libby  cast  oft’  the 
lines,  and  began  working  the  schooner  out  from  the  wharf 
into  the  stream.  The  main-sail  was  partially  hoisted;  but 
no  sooner  had  the  wharf  been  left,  than  two  boats  were 
observed  putting  off  from  the  United  States  sloop-of-war 


300 

Cyane,  then  lying  at  anchor  in  the  hay.  As  they  headed 
for  the  schooner,  Libby,  pointing  at  them,  said  to  Great* 
house  that  they  were  after  them.  Rubery  then  insisted  on 
running  up  the  sails,  but  Libby  replied  that  there  was  no 
wind,  and  it  would  be  useless.  In  a few  minutes  after- 
wards the  schooner  was  boarded  and  seized  by  the  officers 
of  the  United  States,  and  the  enterprise  nipped  in  the 
bud.  Scarcely  had  the  seizure  been  effected  when  Law 
made  his  appearance  on  board  and  was  arrested  with  the 
others. 

The  revenue  officers  of  the  United  States  had  been  aware 
of  the  intended  enterprise  from  an  early  period,  and  main- 
tained a constant  watch  on  the  vessel  night  and  day. 

They  knew  the  character  of  the  cargo,  which  had  been 
carefully  noted  by  the  watchmen;  were  aware  of  the  ship- 
ment of  arms,  and  saw  the  cases  with  their  false  marks. 
On  the  Saturday  afternoon  when  the  schooner  was  cleared 
for  Manzanillo,  they  increased  the  watch,  chartered  a steam- 
tug,  and  put  policemen  on  board.  They  also  made  arrange- 
ments for  the  reception  and  cbnfinement  of  prisoners  at 
the  United  States  fortifications  on  Alcatraz  Island,  and 
procured  the  two  boats  with  their  crews  from  the  war-ship 
Cyane,  to  act  in  conjunction  with  them  on  a given  signal. 
In  the  evening,  the  revenue  officers  themselves  went  on 
board  the  tug,  proceeded  to  a wharf  next  that  at  which  the 
J.  M.  Chapman  lay,  and  watched  the  men  going  on  hoard. 
When  the  schooner  cast  off  its  lines  at  daylight  and  headed 
out  into  the  stream,  the  boats  from  the  Cyane  put  off  and 
boarded  it  according  to  previous  arrangement;  and  at  the 
same  time  the  tug  steamed  up.  Greathouse  and  Libby 
were  on  deck;  the  others  were  below.  Fifteen  men  were 
found  in  the  hold  under  the  hatch,  besides  two  sailors,  who 
had  been  placed  there  over  night  to  prevent  them  from 
leaving  the  vessel.  A search  being  instituted  for  papers, 
a number  of  scraps,  some  torn,  some  chewed,  and  some 
partially  burned,  were  found  strewn  about  the  hold.  The 
two  sailors  confined  testified  that  some  of  the  party  had 


301 


employed  the  time  intervening  between  the  boarding  of 
the  vessel  and  the  opening  of  the  hatchway  in  destroying 
papers.  Loaded  pistols  and  bowie-knives  were  found  stowed 
away  in  the  interstices  between  the  packages  of  the  cargo. 
In  the  baggage  of  Harpending  and  Rnbery  were  found, 
among  other  papers,  a proclamation  to  the  people  of  Cali- 
fornia to  throw  off  the  authority  of  the  United  States;  a 
plan  for  the  capture  of  the  United  States  forts  at  San  F ran- 
cisco,  and  particularly  Alcatraz;  also,  the  form  of  an  oath 
of  fidelity  to  their  cause,  with  an  imprecation  of  vengeance 
on  all  who  should  prove  false.  It  was  shown  that  some 
of  these  papers  were  in  the  handwriting  of  Harpending; 
and  Rubery  admitted  that  he  and  one  of  the  defendants 
had  spent  some  time  in  preparing  the  oaths. 

After  the  seizure  and  arrest,  the  prisoners  were  taken 
to  Alcatraz  and  confined.  The  schooner  was  unloaded, 
and  the  arms  and  munitions  examined.  An  army  officer 
testified  that,  in  his  opinion,  the  schooner  might  have  de- 
stroyed a Panama  steamer;  but  naval  officers  expressed  a 
doubt  whether  this  could  have  been  done. 

The  defence  offered  no  testimony,  but  claimed,  among 
other  things,  that  a state  of  war  existed  between  the  United 
States  and  the  Confederate  States;  that  the  latter  were  en- 
titled to,  and  had  in  fact  received  from  the  former,  bel- 
ligerent rights;  and  that  privateering  on  the  part  of  either 
side  was  a legitimate  mode  of  warfare,  and  made  those 
engaged  amenable  only  to  the  laws  of  war.  They  also 
claimed  that  the  schooner  had  not  started  on  her  voyage, 
but  had  left  the  wharf  with  the  intention  of  anchoring  in 
the  stream  and  waiting  there  for  the  captain  and  papers; 
that  whatever  the  ultimate  intention  might  have  been, 
there  had,  in  fact,  been  no  commencement  of  the  cruise, 
and  that,  at  any  rate,  no  offence  could  have  been  com- 
mitted until  the  schooner  had  reached  Manzanillo,  and 
been  ready  to  commence  hostilities.  They  finally  insisted 
that  there  could  be  no  treason  and  no  conviction  under 
the  indictment,  for  the  reason  that  “ aid  and  comfort  ” 
had  not  been  actually  given. 


302 


The  trial  lasted  three  weeks.  Judge  Hoffman  of  the 
District  Court  sat  with  Judge  Field,  and  each  of  the  judges 
gave  their  views  to  the  jury,  following  in  that  respect  the 
practice  which  was  adopted  in  some  of  the  early  State 
cases  in  the  Circuit  Courts,  at  the  close  of  the  last  cen- 
tuiy. — (See  Wharton’s  State  Trials,  Fries’  Case,  pages 
584  and  587.) 

In  his  charge  Judge  Field  defined  what  constituted 
treason  under  the  Constitution  of  the  United  States,  fol- 
lowing in  that  respect  the  definition  of  Chief  Justice  Mar- 
shall in  Ex-parte  Bollman  and  Ex-parte  Swartwout,  (4 
Crancli,  127,)  and  commented  upon  and  explained  the  act 
of  July,  1862,  under  which  the  indictment  was  found,  and 
then  proceeded  as  follows  : 

“ The  existence  of  the  rebellion  is  a matter  of  public  notoriety,  and 
like  matters  of  general  and  public  concern  to  the  whole  country,  may  be 
taken  notice  of  by  judges  and  juries  without  that  particular  proof  which 
is  required  of  the  other  matters  charged.  The  public  notoriety,  the  pro- 
clamation of  the  President,  and  the  acts  of  Congress  are  sufficient  proof 
of  the  allegation  of  the  indictment  in  this  respect.  The  same  notoriety 
and  public  documents  are  also  sufficient  proof  that  the  rebellion  is  or- 
ganized and  carried  on  under  a pretended  government  called  the  Confed- 
erate States  of  America. 

“As  to  the  treasonable  purposes  of  the  defendants  there  is  no  conflict 
in  the  evidence.  It  is  true  the  principal  witnesses  of  the  government 
are,  according  to  their  own  statements,  co-conspirators  with  the  defend- 
ants, and  equally  involved  in  guilt  with  them,  if  guilt  there  be  in  any  of 
them.  But  their  testimony,  as  you  have  seen,  has  been  corroborated  in 
many  of  its  essential  details.  You  are,  however,  the  exclusive  judges  of 
its  credibility.  The  Court  will  only  say  to  you  that  there  is  no  rule  of 
law  which  excludes  the  testimony  of  an  accomplice,  or  prevents  you  from 
giving  credence  to  it,  when  it  has  been  corroborated  in  material  particu- 
lars. Indeed,  gentlemen,  I have  not  been  able  to  perceive  from  the  ar- 
gument of  counsel  that  the  truth  of  the  material  portions  of  their  testi- 
mony has  been  seriously  controverted. 

“ It  is  not  necessary  that  I should  state  in  detail  the  evidence  pro- 
duced. I do  not  propose  to  do  so.  It  is  sufficient  to  refer  to  its  gen- 
eral purport.  It  is  not  denied,  and  will  not  be  denied,  that  the  evidence 
tends  to  establish  that  Harpending  obtained  from  the  president  of  the 
so-called  Confederate  States  a letter  of  marque — a commission  to  cruise  in 
their  service  on  the  high  seas,  in  a private  armed  vessel,  and  commit  hos- 
tilities against  the  citizens,  vessels,  and  property  of  the  United  States ; 


303 


that  his  co-defendants  and  others  entered  into  a conspiracy  with  him 
to  purchase  and  tit  out,  and  arm  a vessel,  and  cruise  under  the  said  letter 
of  marque,  in  the  service  of  the  rebellion  ; that  in  pursuance  of  the  con- 
spiracy they  purchased  the  schooner  J.  M.  Chapman  ; that  they  purchased 
cannon,  shells,  aud  ammunition,  and  the  means  usually  required  in  en- 
terprises of  that  kind,  and  placed  them  on  board  the  vessel ; that  they 
employed  men  for  the  management  of  the  vessel ; and  that,  when  every- 
thing was  iu  readiness,  they  started  with  the  vessel  from  the  wharf,  with 
the  intention  to  sail  from  the  port  of  San  Francisco  on  the  arrival  on 
board  of  the  captain,  who  was  momentarily  expected.  Gentlemen  I do 
not  propose  to  say  anything  to  you  upon  the  much  disputed  questions 
whether  or  not  the  vessel  ever  did,  in  fact,  sail  from  the  port  of  San  Fran- 
cisco, or  whether,  if  she  did  sail,  she  started  on  the  hostile  expedition. 
In  the  judgment  of  the  Court  they  are  immaterial,  if  you  find  the  facts 
to  be  what  I have  said  the  evidence  tends  to  establish. 

“ - When  Harpending  received  the  letter  of  marque,  with  the  intention 
of  using  it,  if  such  be  the  case  (and  it  is  stated  by  one  of  the  witnesses  that 
he  represented  that  he  went  on  horseback  over  the  plains  expressly  to  ob- 
tain it),  he  became  leagued  with  the  insurgents — the  conspiracy  between 
him  and  the  chiefs  of  the  rebellion  was  complete ; it  was  a conspiracy  to 
commit  hostilities  on  the  high  seas  against  the  United  States,  their  author- 
ity and  law’s.  If  the  other  defendants  united  with  him  to  carry  out  the 
hostile  expedition,  they,  too,  became  leagued  with  him  and  the  insurgent 
chiefs  in  Virginia  in  the  general  conspiracy.  The  subsequent  purchasing 
of  the  vessel,  and  the  guns,  and  the  ammunition,  and  the  employment  of 
the  men  to  manage  the  vessel,  if  these  acts  were  done  in  l'utherance  of 
the  common  design,  were  overt  acts  of  treason.  Together,  these  acts 
complete  the  essential  charge  of  the  indictment.  In  doing  them  the  de- 
fendants were  performing  a part  in  aid  of  the  great  rebellion.  They  were 
giving  it  aid  and  comfort.’ 

“ It  is  not  essential  to  constitute  the  giving  of  aid  and  comfort  that  the 
enterprise  commenced  should  be  successful  and  actually’  render  assistance. 
If,  for  example,  a vessel  fully  equipped  and  armed  in  the  service  of  the 
rebellion  should  fail  in  its  attack  upon  one  of  our  vessels,  and  be  itself 
captured,  no  assistance  would  in  truth  be  rendered  to  the  rebellion  ; but 
yet  in  judgment  of  law,  in  legal  intent,  the  aid  and  comfort  would  be 
given.  So  if  a letter  containing  important  intelligence  for  the  insurgents 
be  forwarded,  the  aid  and  comfort  are  given,  though  the  letter  be  inter- 
cepted on  its  way.  Thus  Foster,  in  his  Treatise  ou  Crown  Law,  says: 

‘ And  the  bare  sending  money  or  provisions,  or  sending  intelligence  to 
rebels  or  enemies,  which  in  most  cases  is  the  most  effectual  aid  that  can 
be  given  them,  will  make  a man  a traitor,  though  the  money  or  intelli- 
gence should  happen  to  be  intercepted ; for  the  party  in  sending  it  did 
all  he  could  ; the  treason  was  complete  on  his  part,  though  it  had  not  the 
effect  he  intended.’ 

“ Whenever  overt  acts  have  been  committed  which,  in  their  natural 
consequence  if  successful,  would  encourage  and  advance  the  interests  of 


804 

the  rebellion,  in  judgment  of  law  aid  aud  comfort  are  given.  Whether 
aid  and  comfort  are  given — the  overt  acts  of  treason  being  established — 
is  not  left  to  the  balancing  of  probabilities;  it  is  a conclusion  of  law. 

“If  tbe  defendants  obtained  a letter  of  marque  from  the  president  of 
the  so-called  Confederate  States,  the  fact  does  not  exempt  them  from 
prosecution  in  the  tribunals  of  the  country  for  the  acts  charged  in  the 
indictment.  The  existence  of  civil  war,  and  the  application  of  the  rules 
of  war  to  particular  cases,  under  special  circumstances,  do  not  imply  the 
renunciation  or  waiver  by  the  Federal  Government  of  any  of  its  muni- 
cipal rights  as  sovereign  toward  the  citizens  of  the  seceded  States. 

“As  matter  of  policy  and  humanity,  the  government  of  the  United 
States  has  treated  the  citizens  of  the  so-called  Confederate  States,  taken 
in  open  hostilities,  as  prisoners  of  war,  and  has  thus  exempted  them  from 
trial  for  violation  of  its  municipal  laws.  But  the  Courts  have  no  such 
dispensing  power ; they  can  only  enforce  the  laws  as  they  find  them  upon 
the  statute-book.  They  cannot  treat  any  new  government  as  having  au- 
thority to  issue  commissions  or  letters  of  marque  which  will  afford  pro- 
tection to  its  citizens  until  the  legislative  and  executive  departments 
have  recognized  its  existence.  The  judiciary  follows  the  political  de- 
partment of  the  government  in  these  particulars.  By  that  department 
the  rules  of  war  have  been  applied  only  in  special  cases;  and,  notwith- 
standing the  application,  Congress  has  legislated  in  numerous  instances 
for  the  punishment  of  all  parties  engaged  in  or  rendering  assistance  in 
any  way  to  the  existing  rebellion.  The  law  under  which  the  defendants 
are  indicted  was  passed  after  captives  in  war  had  been  treated  and  ex- 
changed as  prisoners  of  war  in  numerous  instances. 

“ But  even  if  full  belligerent  rights  had  been  conceded  to  the  Confed- 
erate States,  such  rights  could  not  be  invoked  for  the  protection  of  per- 
sons entering  within  the  limits  of  States  which  have  never  seceded,  and 
secretly  getting  up  hostile  expeditions  against  our  government  and  its 
authority  and  laws.  The  local  and  temporary  allegiance  which  every 
one — citizen  or  alien — owes  to  the  government  under  which  he  at  the 
time  lives,  is  sufficient  to  subject  him  to  the  penalties  of  treason.” — (4 
Sawyer,  470-4.) 

The  last  part  of  this  charge  is  undoubtedly  correct,  for 
whatever  protection  the  concession  of  belligerent  rights 
may  have  given  to  persons  engaged  in  actual  warfare  on 
the  Confederate  side,  none  could  be  allowed  to  persons  in 
league  with  them,  engaged  in  getting  up  hostile  expeditions 
within  the  limits  of  the  States  which  had  never  seceded. 
Under  no  aspect  of  the  law  of  belligerency  could  they  he 
exempted  from  .prosecution.  The  extent  of  protection 
which  the  concession  of  belligerent  rights  gives  to  insur- 


305- 


gents  against  an  established  government  is  stated  by  the 
Supreme  Court  in  Williams  vs.  Brufiy  (6  Otto,  187). — 
See  above,  page  94. 

Happily  the  great  Act  of  Amnesty  promulgated  by  Presi- 
dent Johnson  on  the  25th  of  December,  1868,  has  removed 
all  ground  for  legal  accusation  against  parties  engaged  in 
the  great  insurrection  against  the  government  of  the 
United  States. — See  language  of  Burke  cited  above  at 
page  60,  and  comments  upon  it. 

The  jury  found  the  defendants  guilty,  and  sentence  im- 
posing both  tine  and  imprisonment  was  pronounced  upon 
them.  Rubery  was  subsequently  pardoned  by  President 
Lincoln  at  the  request  of  John  Bright  of  England.  The 
other  defendants  were  subsequently  released  from  im- 
prisonment upon  taking  the  oath  prescribed  in  tbe  procla- 
mation of  President  Lincoln  of  December  8,  1863,  and 
giving  a bond  for  their  future  good  behavior. 

United  States  vs.  Knowles. 

This  case  was  also  one  of  special  interest.  It  was  tried 
in  the  Circuit  Court  in  1864.  Knowles  was  the  captain  of 
tbe  American  ship  “ Charger,”  and  in  April  of  that  year 
one  of  its  sailors,  by  the  name  of  Swainson,  whilst  on 
the  royal-  yard  engaged  in  furling  sail,  accidentally  fell 
overboard.  The  captain  refused  to  stop  the  vessel  and 
lower  either  of  its  boats — it  had  three — or  to  make  any 
attempt  to  rescue  the  man,  and  he  was  drowned.  An  in- 
dictment was  accordingly  found  against  him,  alleging  that 
the  sailor  might  have  been  saved  had  the  captain  stopped 
his  ship  and  lowered  either  of  its  boats  and  made  any  at- 
tempt to  rescue  him,  and  that  for  his  negligence  and  omis- 
sion in  this  respect  the  sailor  was  drowned,  and  hence 
charging  the  captain  with  murder.  At  the  outset  of  the 
trial  the  public  prosecutor  only  asked  a verdict  for  man- 
slaughter. 

Judge  Field,  after  stating  the  nature  of  the  indictment, 
charged  the  jury  as  follows: 


“As  you  will  thus  perceive,  gentleman,  the  charge  is  that  the  death  of 
Swainson  was  occasioned  by  the  willful  omission  of  the  defendant  to 
stop  the  ship,  lower  the  boats,  and  rescue  him,  or  to  make  any  attempt 
for  his  rescue.  In  the  majority  of  cases  where  manslaughter  is  charged, 
the  death  alleged  has  resulted  from  direct  violence  on  the  part  of  the  ac- 
cused. Here  the  death  is  charged  to  have  been  occasioned  by  the  willful 
omission  of  the  defendant  to  perform  a plain  duty. 

“ There  may  be,  in  the  omission  to  do  a particular  act  under  some  cir- 
cumstances, as  well  as  in  the  commission  of  an  act,  such  a degree  of  crim- 
inality as  to  render  the  offender  liable  to  indictment  for  manslaughter. 
The  law  on  the  subject  is  this  : that  where  death  is  the  direct  and  imme- 
diate result  of  the  omission  of  a party  to  perform  a 'plain  duty  imposed 
upon  him  by  law  or  contract,  he  is  guilty  of  a felonious  homicide.  There 
are  several  particulars  in  this  statement  of  the  law  to  which  your  atten- 
tion is  directed. 

“ In  the  first  place,  the  duty  omitted  must  be  a plain  duty,  by  which  I 
mean  that  it  must  be  one  that  does  not  admit  of  any  discussion  as  to  its 
.obligatory  force;  one  upon  which  different  minds  must  agree,  or  will 
generally  agree.  Where  doubt  exists  as  to  what  conduct  should  be  pur- 
sued in  a particular  case,  and  intelligent  men  differ  as  to  the  proper  ac- 
tion to  be  had,  the  law  does  not  impute  guilt  to  any  one,  if,  from  omis- 
sion to  adopt  one  course  instead  of  another,  fatal  consequences  follow  to 
others.  The  law  does  not  enter  into  any  consideration  of  the  reasons 
governing  the  conduct  of  men  in  such  cases,  to  determine  whether  they 
are  culpable  or  not. 

“ In  the  second  place,  the  duty  omitted  must  be  one  which  the  party 
is  bound  to  perform  by  law  or  contract,  and  not  one  the  performance  of 
which  depends  simply  upon  his  humanity,  or  his  sense  of  justice  or  pro- 
priety. In  the  absence  of  such  obligations  it  is  undoubtedly  the  moral 
duty  of  every  person  to  extend  to  others  assistance  when  in  danger;  to 
throw,  for  instance,  a plank  or  rope  to  a drowning  man,  or  make  other 
efforts  for  his  rescue,  and  if  such  efforts  should  be  omitted  by  any  one 
when  they  could  be  made  without  imperiling  his  own  life,  he  would,  by 
his  conduct,  draw  upon  himself  the  just  censure  and  reproach  of  good 
men;  but  this  is  the  only  punishment  to  which  he  would  be  subjected  by 
society. 

“ In  the  third  place,  the  death  which  follows  the  duty  omitted  must  be 
the  immediate  and  direct  consequence  of  the  omission.  There  are  many 
cases  in  the  reports  in  which  this  doctrine  of  liability  for  negligence  re- 
sulting in  death  is  asserted.  In  one  case  a defendant  had  been  employed 
to  give  signals  to  railway  trains  of  obstructions  on  the  road.  Having,  on 
one  occasion,  neglected  to  give  the  proper  signal  of  an  obstruction,  a col- 
lision followed,  causing  the  death  of  a passenger.  The  negligence  was 
held  to  be  criminal  and  the  defendant  was  convicted  of  manslaughter. — 
(Kegina  vs.  Pargeter,  3 Cox  C.  C.,  191.)  In  another  case  the  defendant 
was  employed  as  the  ground  bailiff  of  a mine,  and  as  such  it  was  his  duty 


to  cause 'the  mine  to  be  ventilated,  by  directing  air-headings  to  be  placed 
where  necessary.  By  his  omission  to  do  this  in  a particular  place  the 
damp  in  the  mine  exploded  and  several  persons  were  killed.  The  defend- 
ant was  indicted  for  manslaughter,  and  the  Court  instructed  the  jury  that 
if  they  were  satisfied  that  it  was  the  ordinary  and  plain  duty  of  the  pris- 
oner to  cause  the  air-heading  to  be  made  in  the  mine,  and  that  a person 
using  reasonable  diligence  would  have  had  it  done,  and  that  by  the  omis- 
sion the  death  of  the  deceased  occurred,  they  should  find  the  prisoner 
guilty. — (Begina  vs.  Ivarmes,  2 Carrington  & Kirwin,  368.)  In  these 
cases  you  will  perceive  that  the  omission  which  resulted  fatally  was  of  a 
plain  personal  duty,  and  that  the  accident  was  the  immediate  and  direct 
consequence  of  the  omission. 

“Now,  in  the  case  of  a person  falling  overboard  from  a ship  at  sea, 
whether  passenger  or  seaman,  when  he  is  not  killed  by  the  fall,  there  is 
no  question  as  to  the  duty  of  the  commander.  He  is  bound,  both  by  law 
and  by  contract,  to  do  everything,  consistent  with  the  safety  of  the  ship 
and  of  the  passengers  and  crew,  necessary  to  rescue  the  person  overboard, 
and  for  that  purpose  to  stop  the  vessel,  lower  the  boats,  and  throw  to  him* 
such  buoys  or  other  articles  which  can  be  readily  obtained,  that  may 
serve  to  support  him  in  the  water  until  he  is  reached  by  the  boats  and 
saved.  No  matter  what  delay  in  the  voyage  may  be  occasioned,  or  what 
expense  to  the  owners  may  be  incurred,  nothing  will  excuse  the  com- 
mander for  any  omission  to  take  these  steps  to  save  the  person  overboard, 
provided  they  can  be  taken  with  a due  regard  to  the  safety  of  the  ship 
and  others  remaining  on  board.  Subject  to  this  condition,  every  person 
at  sea,  whether  passenger  or  seaman,  has  a right  to  all  reasonable  efforts 
of  the  commander  of  the  vessel  for  his  rescue  in  case  he  should  by  acci- 
dent fall  or  be  thrown  overboard.  Any  neglect  to  make  such  efforts 
would  be  criminal,  and  if  followed  by  the  loss  of  the  person  overboard, 
when  by  them  he  might  have  been  saved,  the  commander  would  be  guilty 
of  manslaughter,  and  might  be  indicted  and  punished  for  that  offence. 

“In  the  present  case  it  is  not  pretended  that  any  efforts  were  made  by 
the  defendant  to  save  Swainson,  nor  is  the  law  as  to  the  duty  of  the  com- 
mander, and  his  liability  for  omitting  to  perform  it  under  the  conditions 
stated,  controverted  by  counsel.  The  positions  taken  in  the  defence  of 
the  accused  are:  1.  That  Swainson  was  killed  by  his  fall  from  the  yard  ; 
2.  That  if  not  killed  it  would  have  been  impossible  to  save  him  in  the 
existing  condition  of  the  sea  and  weather ; 3.  That  to  have  attempted  to 
save  him  would  have  endangered  the  safety  of  the  ship  and  the  lives  of 
the  crew.  If,  in  your  judgment,  either  of  these  positions  is  sustained  by 
the  evidence,  the  defendant  is  entitled  to  an  acquittal. 

“ The  killing  of  Swainson  from  his  fall  is  alleged  from  the  distance  he 
must  have  fallen,  and  the  absence  of  any  appearance  of  subsequent  mo- 
tion on  his  part  in  the  water.  The  distance  was  one  hundred  and  ten 
feet,  as  stated  by  one  of  the  witnesses  from  actual  measurement.  An- 
other witness  says  that  Swainson  struck  the  water  on  hi.s  back  or  front ; 

21 


308 


a third  witness  states  that  the  feet  of  Swainson  struck  the  water  first, 
but  the  position  of  the  body  was  somewhat  inclined.  From  the  noise 
made  in  falling  the  mate  was  of  the  opinion  that  Swainson  struck  the 
channels  on  the  side  of  the  vessel  in  his  fall.  You  can  judge  of  the  prob- 
abilities of  the  man  being  alive  after  a fall  of  this  kind.  If  you  believe 
from  the  evidence  that  he  was  killed  by  the  fall,  that  is  an  end  of  this 
case,  and  you  need  not  pursue  your  inquiries  further.  But  more,  if  you 
have  any  reasonable  doubt,  by  which  I mean  a doubt  founded  upon  a 
consideration  of  all  the  circumstances  and  evidence,  and  not  a doubt  rest- 
ing upon  mere  conjecture  or  speculation,  whether  he  was  killed  by  the 
tall,  you  need  not  go  further.  The  prosecution  proceeds  upon  the  ground 
that  he  was  not  thus  killed,  the  district  attorney  relying  upon  the  general 
presumption  of  the  law  that  a man  known  to  be  alive  at  a particular 
time  continues  alive  until  his  death  is  proved,  or  some  event  is  shown  to 
have  happened  to  him  which  usually,  in  the  experience  of  men.  proves 
fatal.  The  fall  of  a person  into  the  sea  from  a height  of  one  hundred  and 
ten  feet  is  not  an  event  which  is  necessarily  fatal.  Nor  can  it  be  said 
that  in  the  experience  of  men  it  is  usually  so.  Its  effect  depends  very 
much,  if  not  entirely,  upon  the  manner  in  which  the  party  falling  strikes 
the  water,  and  the  existence  of  obstacles  breaking  the  force  of  the  fall. 
The  fact,  therefore,  that  the  fall  of  Swainsou  appears  in  the  evidence  pre- 
sented by  the  prosecution,  does  not  change  the  presumption  of  the  law 
which  I have  mentioned.  The  burden  still  remains  upon  the  defendant 
of  showing  that  the  fall  was  fatal,  or  of  showing  such  attending  circum- 
stances as  to  create  a reasonable  doubt  whether  such  was  not  the  fact. 
You  will  not  take  the  fall  itself  as  conclusive  on  this  point,  hut  will  con- 
sider it  in  connection  with  the  evidence  of  the  manner  in  which  the  party 
fell,  and  particularly  of  the  manner  in  which  he  struck  the  water  in 
falling. 

“ If  you  are  satisfied  that  the  fall  was  not  immediately  fatal,  the  next 
inquiry  will  be  whether  Swainson  could  have  been  saved  by  any  reason- 
able efforts  of  the  captain,  in  the  then  condition  of  the  sea  and  weather. 
That  the  wind  was  high  there  can  be  no  doubt.  The  vessel  was  going, 
at  the  time,  at  the  rate  of  twelve  knots  an  hour  ; it  had  averaged  for  sev- 
eral hours  teu  knots  an  hour.  A wind  capable  of  propelling  a vessel  at 
that  speed  would  in  a few  hours  create  a strong  sea.  To  stop  the  ship, 
change  its  course,  go  back  to  the  position  where  the  seaman  fell  over- 
board, and  lower  the  boats,  would  have  required  a good  deal  of  time,  ac- 
cording to  the  testimony  of  several  witnesses.  In  the  meanwhile,  the 
man  overboard  must  have  drifted  a good  way  from  the  spot  where  he  fell. 
To  these  considerations  you  will  add  the  probable  shock  and  consequent 
exhaustion  which  Swainson  must  have  experienced  from  the  fall,  even 
supposing  that  he  was  not  immediately  killed. 

“ It  is  not  sufficient  for  you  to  believe  that  possibly  he  might  have  heen 
saved.  To  find  the  defendant  guilty  you  must  come  to  the  conclusion 
that  he  would,  beyond  a reasonable  doubt,  have  been  saved  if  proper  efforts 


309 

to  save  him  had  been  seasonably  made,  and  that  bis  death  was  the  con- 
sequence of  the  defendant’s  negligence  in  this  respect.  Besides  the  con- 
dition of  the  weather  and  sea,  you  must  also  take  into  consideration  the 
character  of  the  boats  attached  to  the  ship.  According  to  the  testimony 
of  the  mate  they  were  small  and  unfit  for  a rough  sea. 

“ During  the  trial  much  evidence  was  offered  as  to  the  character  of  the 
defendant  as  a skillful  and  able  officer  and  as  a humane  man.  The  act 
charged  is  one  of  gross  inhumanity  ; it  is  that  of  allowing  a sailor  falling 
overboard  whilst  at  work  upon  the  ship,  to  perish,  without  an  effort  to 
save  him,  when  by  proper  efforts,  promptly  made,  he  could  have  been 
saved.  If  there  be  any  doubt  as  to  the  conduct  of  the  defendant,  his 
past  life  and  character  should  have  some  consideration  with  you. 

“ With  these  views  I leave  the  case  with  you.  It  is  one  of  much  inter- 
est, but  I do  not  think  that,  under  the  instructions  given,  you  will  have 
any  difficulty  in  arriving  at  a just  conclusion.” — (4  Sawyer,  518-23.) 

The  jury  returned  a verdict  of  acquittal. 

United  States  vs.  Smiley. 

This  was  another  case  which  excited  much  interest  at 
the  time.  It  arose  as  follows  : The  steamer  Golden  Gate 
left  San  Francisco  for  Panama  on  the  21st  July,  1862, 
with  two  hundred  and  forty-two  passengers  and  a crew 
of  ninety-six  persons.  At  about  five  o’clock  on  the  after- 
noon of  Sunday,  July  27th,  while  running  within  three 
and  a half  miles  of  the  Mexican  coast,  she  was  dis- 
covered to  be  on  fire.  An  examination  disclosed  that 
the  fire  had  originated  between  one  of  the  galleys  and 
the  smoke-stack,  and  it  soon  became  apparent  that  it 
was  impossible  to  save  her.  She  was  then  immediately 
headed  for  the  shore,  and  half  an  hour  later  struck  on  a 
shelving  beach  of  sand  about  two  hundred  and  fifty  feet 
from  the  shore,  at  a point  fifteen  miles  north  of  the  port 
of  Manzanillo.  The  surf,  which  was  breaking  heavily, 
soon  swung  her  stern  around  so  that  she  lay  nearly  paral- 
lel with  the  beach  when  she  went  to  pieces.  At  eight 
o’clock  of  that  evening  all  that  remained  visible  were  her 
engines,  boilers,  and  wheel  frames.  Of  the  three  hundred 
and  thirty-eight  souls  on  board  only  one  hundred  and 
forty  were  saved.  The  treasure  which  she  carried,  amount- 
ing to  one  million  four  hundred  and  fifty  thousand  dollars 


310 


was  sunk  about  forty  feet  inside  of  the  wreck,  where  in  a 
space  of  sixty  feet  square  upwards  of  one  million  two  hun- 
dred thousand  dollars  were  subsequently  recovered. 

Soon  after  the  loss  of  the  steamer  was  known,  a vessel 
was  fitted  out  by  the  underwriters  to  proceed  to  the 
scene  of  disaster  and  recover  whatever  was  possible  of 
the  treasure.  The  parties  employed  soon  returned  and 
abandoned  the  idea  of  finding  it.  Immediately  another 
vessel,  the  ■“  Active,”  was  sent  by  a party  of  capitalists,  on 
the  same  errand,  but  she  returned  likewise  unsuccessful. 
In  December,  1862,  another  party  of  capitalists  started 
another  vessel,  the  schooner  “ William  Ireland,”  fitted 
with  pumps  and  wrecking  appliances  and  accompanied  by 
sub-marine  divers,  under  the  command  of  Ireland,  one  of 
the  projectors  of  the  enterprise.  The  men  in  this  expe- 
dition succeeded  in  recovering  $800,000.  In  August,  1863, 
they  again  returned  to  the  wreck  and  were  successful  in 
recovering  seventy-six  thousand  dollars  more,  when  it  was 
believed  that  any  further  efforts  to  secure  any  additional 
amount  would  be  unsuccessful.  Afterwards,  in  Septem- 
ber, 1863,  Thomas  Smiley  and  others  fitted  out  another 
expedition  with  a party  of  divers  and  a more  complete 
equipment  of  diving  and  wrecking  apparatus,  and  returned 
in  January  following,  having  succeeded  in  recovering 
$303,000.  On  a second  trip  they  found  thirty-three  thou- 
sand more  ; and  with  this  voyage  all  efforts  in  that  direc- 
tion were  closed.  The  treasure  recovered  by  Smiley  and 
others,  was  carried  in  wooden  boxes,  each  containing  from 
$500  to  $44,000,  and  was  stowed  in  a room  near  the  stern 
of  the  ship.  The  locality  where  the  greater  part  was  found 
was  about  one  hundred  and  fifty  feet  from  the  shore  of 
Mexico  and  in  from  six  to  nine  feet  of  water.  Beneath 
the  water  was  an  equal  depth  of  sand  under  which  was  a 
hard  clay  stratum.  On  this  hard  pan  beneath  the  water 
and  the  sand  the  treasure  boxes  lay. 

Before  commencing  his  operations,  Smiley  had  obtained 
from  the  Mexican  government  a license  to  explore  for 


311 


the  treasure  lost.  On  his  return  to  San  Francisco,  claim 
was  made  by  shippers  for  the  specie  recovered,  hut  it  was 
not  given  up,  as  the  parties  could  not  agree  as  to  the 
amount  which  the  recovering  company  should  retain  as 
compensation  for  the  recovery.  The  result  was  that  a 
complaint  was  made  against  Smiley  and  others  of  his  com- 
pany, and  in  March,  1864,  they  were  indicted  in  the  Cir- 
cuit Court  of  the  United  States  for  plundering  and 
stealing  the  treasure  from  the  Golden  Gate,  under  the 
ninth  section  of  the  act  of  Congress  of  March  3d,  1825, 
which  provides:  “That,  if  any  person  or  persons  shall 
plunder,  steal,  or  destroy  any  money,  goods,  merchandise, 
or  other  effects,  from  or  belonging  to  any  ship,  or  vessel, 
or  boat,  or  raft,  which  shall  be  in  distress,  or  which  shall 
he  wrecked,  lost,  stranded,  or  cast  away  upon  the  sea,  or 
upon  any  reef,  shoal,  bank,  or  rocks  of  the  sea,  or  in  any 
other  place  within  the  admiralty  and  maritime  jurisdiction 

of  the  United  States,” [he]  “ shall  be  deemed  guilty 

of  felony,  and  shall,  on  conviction  thereof,  be  punished  by 
line,  not  exceeding  five  thousand  dollars,  and  imprison- 
ment and  confinement  to  hard  labor  not  exceeding  ten 
years,  according  to  the  aggravation  of  the  offence.”  * 

To  the  indictment  a demurrer  was  interposed  on  various 
technical  grounds.  As  the  expedition  conducted  by  Smiley 
was  an  open  one,  after  all  other  efforts  for  the  recov- 
ery of  the  treasure  had  been  abandoned,  and  Smiley  was 
a man  of  previously  good  character  and  standing  in  the 
community,  the  indictment  was  generally  regarded  as  per- 
secution— as  an  attempt  to  coerce  the  treasure  from  him 
without  allowing  proper  compensation  to  him  and  his  as- 
sociates for  its  recovery.  The  counsel  engaged  in  the  case 
appeared  to  recognize  this.  It  was,  therefore,  agreed  that 
the  facts  stated  above  should  be  deemed  admitted,  and  that 
upon  them  the  following  questions  should  be  presented 
to  the  Court  for  determination:  1st,  Whether  the  act  of 
Congress  applied  to  a case  where  the  taking  of  the  prop- 


* 4 Stat.  at  Large,  p.  116. 


812 


erty,  of  wliich  larceny  was  alleged,  was  after  the  vessel 
had  gone  to  pieces  and  disappeared;  and,  2d.  Whether,  if 
the  act  covered  such  a case,  the  Circuit  Court  had  juris- 
diction to  try  the  offence  charged,  it  having  been  com- 
mitted within  a marine  league  of  the  shore  of  Mexico; 
with  a stipulation  that  if  the  Court  should  be  of  opinion 
that  the  act  did  not  apply  to  the  case,  or  that  it  had  not 
jurisdiction  to  try  the  offence  charged,  the  demurrer  should 
be  sustained.  Upon  this  stipulation  the  questions  were 
argued.  In  disposing  of  them  the  Court  said,  speaking 
through  Judge  Field: 

“ We  are  not  prepared  to  decide  that  the  statute  does  not  apply  to  a 
case  where  the  vessel  has  gone  to  pieces,  to  which  the  goods  belonged  of 
which  larceny  is  alleged.  It  would  fail  of  one  of  its  objects  if  it  did  not 
extend  to  goods,  which  the  officers  and  men  of  a stranded  or  wrecked  ves- 
sel had  succeeded  in  getting  ashore,  so  long  as  a claim  is  made  by  them 
to  the  property,  though  before  its  removal  the  vessel  may  have  been 
broken  up.  We  are  inclined  to  the  conclusion  that,  until  the  goods  are 
removed  from  the  place  where  landed,  or  thrown  ashore,  from  the  stranded 
or  w recked  vessel,  or  cease  to  be  under  the  charge  of  the  officers  or  other 
parties  interested,  the  act  would  apply  if  a larceny  of  them  were  committed, 
even  though  the  vessel  may  in  the  meantime  have  gone  entirely  to  pieces 
and  disappeared  from  the  serf.  But  in  this  case  the  treasure  taken  had 
ceased  to  be  under  the  charge  of  the  officers  of  the  ‘ Golden  Gate,’  or  of 
its  underwriters,  when  the  expedition  of  Smiley  was  fitted  out,  and  all 
efforts  to  recover  the  property  had  been  given  up  by  them.  The  treas- 
ure was  then  in  the  situation  of  derelict  or  abandoned  property,  which 
could  be  acquired  by  any  one  who  might  have  the  energy  and  enterprise 
to  seek  its  recovery.  In  our  judgment  the  act  was  no  more  intended  to 
reach  cases  where  property  thus  abandoned  is  recovered,  than  it  does  to 
reach  property  voluntarily  thrown  into  the  sea,  and  afterwards  lished 
from  its  depths. 

“ But  if  the  act  covered  a case  where  the  property  was  recovered  after 
its  abandonment  by  the  officers  of  the  vessel  and  others  interested  in  it, 
we  are  clear  that  the  Circuit  Court  has  not  jurisdiction  of  the  offence 
here  charged.  The  treasure  recovered  was  buried  in  the  sand  several  feet 
under  the  water,  and  was  within  one  hundred  and  fifty  feet  from  the 
shore  of  Mexico.  The  jurisdiction  of  that  country  over  all  offences  com- 
mitted within  a marine  league  of  its  shore,  not  on  a vessel  of  another 
nation,  was  complete  and  exclusive. 

“ Wheaton,  in  his  treatise  on  International  Law,  after  observing  that 
‘ the  maritime  territory  of  every  State  extends  to  the  ports,  harbors,  bays, 
and  mouths  of  rivers  and  adjacent  parts  of  the  sea  inclosed  by  headlands, 


313 


belonging  to  the  same  State,’  says:  ‘The  general  usage  of  nations 
superadds  to  this  extent  of  territorial  jurisdiction  a distance  of  a marine 
league,  or  as  far  as  a cannon-shot  will  reach  from  the  shore,  along  all  the 
coasts  of  the  State.  Within  these  limits  its  rights  of  property  and  terri- 
torial jurisdiction  are  absolute,  and  exclude  those  of  every  other  nation.’ 
— (Part  2,  Chap.  4,  Section  6.) 

“ The  criminal  jurisdiction  of  the  government  of  the  United  States — that 
is,  its  jurisdiction  to  try  parties  for  offences  committed  against  its  laws — 
may  in  some  instances  extend  to  its  citizens  everywhere.  Thus,  it  may 
punish  for  violation  of  treaty  stipulations  by  its  citizens  abroad — for  of- 
fences committed  in  foreign  countries  where,  by  treaty,  jurisdiction  is 
conceded  for  that  purpose,  as  in  some  cases  in  China  and  in  the  Bar- 
bary States  ; it  may  provide  for  offences  committed  on  deserted  islands, 
and  on  an  uninhabited  coast,  by  the  officers  and  seamen  of  vessels  sailing 
under  its  flag.  It  may  also  punish  derelictions  of  duty  by  its  ministers, 
consuls,  and  other  representatives  abroad.  But  in  all  such  cases  it  will  be 
found  that  the  law  of  Congress  indicates  clearly  the  ex-territorial  character 
of  the  act  at  which  punishment  is  aimed.  Except  in  cases  like  these,  the 
criminal  jurisdiction  of  the  United  States  is  necessarily  limited  to  their 
own  territory,  actual  or  constructive.  Their  actual  territory  is  co-extensive 
with  their  possessions,  including  a marine  league  from  their  shores  into  the 
sea. 

“This  limitation  of  a marine  league  was  adopted  because  it  was  for- 
merly supposed  that  a cannon-shot  would  only  reach  to  that  extent.  It 
is  essential  that  the  absolute  domain  of  a country  should  extend  into  the 
sea  so  far  as  necessary  for  the  protection  of  its  inhabitants  against  injury 
from  combating  belligerents  while  the  country  itself  is  neutral.  Since 
the  great  improvement  of  modern  times  in  ordnance,  the  distance  of  a 
marine  league,  which  is  a little  short  of  three  English  miles,  may,  per- 
haps. have  to  be  extended  so  as  to  equal  the  reach  of  the  projecting  power 
of  modern  artillery.  The  constructive  territory  of  the  United  States  em- 
braces vessels  sailing  under  their  flag;  wherever  they  go  they  carry  the 
laws  of  their  country,  and  for  a violation  of  them  their  officers  and  men 
may  be  subjected  to  punishment.  But  when  a vessel  is  destroyed  and  goes 
to  the  bottom,  the  jurisdiction  of  the  country  over  it  necessarily  ends, 
as  much  so  as  it  would  over  an  island  which  should  sink  into  the  sea. 

“ In  this  case  it  appears  that  the  ‘Golden  Gate’  was  broken  up  ; not  a 
vestige  of  the  vessel  remained.  Whatever  was  afterwards  done  with  ref- 
erence to  property  once  on  board  of  her,  which  had  disappeared  under 
the  sea,  was  done  out  of  the  jurisdiction  of  the  United  States  as  com- 
pletely as  though  the  steamer  had  never  existed. 

“ We  are  of  opinion,  therefore,  that  the  Circuit  Court  has  no  jurisdic- 
tion to  try  the  offence  charged,  even  if,  under  the  facts  admitted  by  the 
parties,  any  offence  was  committed.  According  to  the  stipulation,  judg- 
ment sustaining  the  demurrer  will  be,  therefore,  entered  and  the  de- 
fendants discharged.’’ 


Ex-parte  Cavanaugh  on  Habeas  Corpus. 


In  this  case  the  petitioner)  James  C.  Cavanaugh,  was 
brought  before  the  Circuit  Court,  in  the  summer  of  1864, 
on  a writ  of  habeas  corpus , alleging  in  his  petition  the  un- 
lawful restraint  of  his  liberty  by  an  officer  claiming  to  be 
a deputy  marshal  of  the  Consular  Court  at  Nagasaki,  in 
Japan,  and  praying  for  his  discharge.  It  appeared  that 
the  petitioner  had  been  convicted  in  that  Court,  in  Sep- 
tember of  the  previous  year, — the  consul  sitting  with  four 
assessors,— of  the  crime  of  manslaughter  in  an  aggravated 
degree,  and  sentenced  to  five  years’  imprisonment,  at  hard 
labor,  in  the  jail  at  that  port,  and  that  the  sentence  had 
been  approved  by  the  resident  minister  in  Japan.  Upon 
the  request  of  the  petitioner,  his  sentence  was  changed  to 
confinement  in  the  State  prison  of  California,  there  being 
no  provision  made  by  Congress  for  a jail  at  the  port  of 
Nagasaki.  He  was  accordingly  brought  to  San  Francisco, 
and  there  he  applied  for  his  discharge. 

Two  points  were  made  before  the  Court:  1st.  That  the 
legislation  of  Congress  carrying  out  the  provisions  of  the 
treaty  with  Japan,  by  which  the  Consular  Court  was  au- 
thorized to  try  citizens  of  the  United  States  charged  with 
the  commission  of  crimes  in  that  empire,  was  unconstitu- 
tional; and,  2d,  if  constitutional,  that  there  was  no  pro- 
vision of  law  authorizing  the  confinement  of  prisoners, 
sentenced  by  that  Court,  in  the  penitentiary  of  California, 
or  their  detention  by  the  marshal  of  the  United  States  for 
that  district. 

The  Court  held  that  the  legislation  of  Congress  was  con- 
stitutional, but  discharged  the  prisoner  on  the  second  ground. 
Its  opinion  has  not  been  reported.  It  placed  the  validity 
of  the  legislation  upon  the  treaty  clause  of  the  Constitu- 
tion, holding  that  that  clause  authorized  treaties  upon  all 
subjects  of  foreign  commerce  and  for  the  protection  of 
persons  engaged  in  it,  and,  if  necessary,  to  prevent  citizens 
of  the  United  States,  charged  with  offences,  front  being 


315 


subjected  to  the  cruel  and  barbarous  punishment  of  Asiatic 
and  other  than  Christian  countries,  the  treaties  might  stip- 
ulate for  a special  tribunal  for  their  trial.  It  followed 
substantially  the  reasons  contained  in  the  letter  to  Mr. 
Calhoun,  then  Secretary  of  State,  of  September,  1844,  by 
Mr.  Caleb  Cushing,  the  minister  who  made  our  treaty 
with  China,  under  which  Congress  passed  the  law  author- 
izing similar  Consular  Courts  in  that  empire. 

Hardy  vs.  Harbin.’ 

This  case  was  before  the  Court  in  July,  1865.  It  was  a 
suit  in  equity  to  charge  the  defendants — as  trustees  of  cer- 
tain real  property,  situated  in  Yolo  County,  California 

and  to  compel  a transfer  of  the  title  to  the  complainants, 
and  arose  out  of  facts  of  a very  unusual  character.  They 
were  briefly  these: 

One  John  Hardy  was  a native  of  Canada,  and  in  1824 
was  married  in  that  province.  Three  children  were  the 
issue  of  this  marriage,  two  of  whom,  Alexander  and  El- 
len, were  living  when  the  suit  was  brought.  Alexander 
was  born  in  Yew  York,  and  during  the  civil  war  was  a sol- 
dier in  the  United  States  Army.  John  Hardy’s  wife  died 
in  1832,  and  soon  afterwards  he  left  Canada,  and  for  one 
or  two  years  was  employed  at  different  places  on  the  Mis- 
sissippi River.  He  then  proceeded  to  Texas  and  thence  to 
Mexico.  There  he  became  a Mexican  citizen  by  natural- 
ization, and  for  a while  was  engaged  in  the  military  ser- 
vice of  the  country.  In  1843  he  went  to  California  and 
there  assumed  the  name  of  Thomas  Hardy,  by  which  name, 
or  that  of  Thomas  M.  Hardy,  he  was  always  known  in 
that  country.  In  October  of  that  year  he  obtained  from 
the  government  of  the  Department  of  California,  in  his 
assumed  name  of  Thomas  Hardy,  a grant  of  land  to  the 
extent  of  six  square  leagues,  in  the  present  county  of  Yolo. 
In  October,  1848,  he  died  at  Benicia,  intestate,  possessed 
of  the  real  property  thus  granted  to  him,  and  also  personal 
property  of  the  value  of  several  thousand  dollars.  In 


316 


March,  1850,  the  Prefect  of  the  District  of  Sonoma,  which 
embraces  Benicia,  appointed  one  Stephen  Cooper,  of  that 
place,  administrator  of  the  estate,  and  issued  letters  of 
administration  to  him,  and  he  took  possession  of  the  prop- 
erty. In  1851  the  Prefect— his  office  having  been  abol- 
ished, and  Probate  Courts  having  been  established  in  the 
several  counties  of  the  State — transferred  the  papers  to  the 
Probate  Court  of  Solano  County.  By  order  of  that  Court 
the  real  property  was  sold  and  the  sale  confirmed.  In 
1852  the  claim  of  the  purchasers  of  the  land  at  that  sale, 
and  of  parties  deriving  title  from  them,  was  presented  for 
confirmation  to  the  Board  of  Land  Commissioners,  created 
bv  act  of  Congress  of  March  3d,  1851,  for  the  settlement 
of  private  land  claims  in  California  derived  from  Mexico. 
This  claim  was  confirmed  by  the  Board  and  afterwards  by 
the  United  States  District  Court,  and  in  July,  1858,  a pat- 
ent of  the  United  States  was  issued  to  the  claimants. 

During  all  this  time  the  two  surviving  children  of  John 
Hardy  had  heard  nothing  of  their  father  except  by  a letter 
from  him  dated  at  Monterey,  in  California,  in  1817  or 
1848.  But  sometime  about  1860,  rumors  reached  them— 
one,  the  daughter,  being  in  Canada,  and  the  other,  the  son, 
being  in  Yew  York — tliat  their  father  had  resided  in  Cal- 
ifornia, acquired  large  property  there,  and  had  died  intes- 
tate, and  that  others  were  claiming  the  property.  Inquiries 
set  on  foot  by  them  satisfied  them  of  the  truth  of  the  ru- 
mors and  this  suit  was  finally  brought  by  them  to  recover 
the  property. 

The  facts  here  narrated  were  set  forth  in  their  bill  of 
complaint,  to  which  the  defendants  demurred  on  the  al- 
leged ground  of  want  of  equity,  and  that  the  claim  of  the 
complainants  was  a stale  one,  and  barred  by  the  statute  of 
limitations  of  the  State.  The  Court  overruled  the  de- 
murrer and  required  the  defendants  to  answer  the  bill. 

In  deciding  the  case  Judge  Field  said,  as  follows: 

“ The  ground  upon  which  the  hill  proceeds  is  that  the  defendants  have 
obtained  the  legal  title  to  property,  of  which  the  father  of  the  complain- 
ants died  possessed,  and  which  the  complainants  inherited:  that  the  de- 


317 


fendants  took  the  legal  title  with  notice  of  the  invalidity  of  the  means 
by  which  it  was  obtained,  and  should,  therefore,  upon  obvious  principles 
of  justice,  be  required  to  give  it  up  to  the  true  owners.  The  bill  is  filed 
for  the  purpose  of  having  a trust  declared  and  enforced,  the  complainauts 
relying  upon  the  established  doctrine  that  whenever  property  is  acquired 
by  fraud,  or  under  such  circumstances  as  to  render  it  inequitable  for  the 
holder  of  the  legal  title  to  retain  it,  a Court  of  Equity  will  convert  him 
into  a trustee  of  the  party  actually  entitled  to  its  beneficial  enjoyment. 
And  the  bill  presents  a clear  case  for  the  application  of  this  doctrine. 
The  Prefect  of  Sonoma  had  no  jurisdiction  over  the  estate  of  the  de- 
ceased, nor  any  authority  to  appoint  an  administrator.  Prefects  were 
executive  officers  of  the  government.  It  was  their  duty  to  maintain  pub- 
lic order  and  tranquillity,  to  publish  and  enforce  the  laws,  and  to  exer- 
cise a general  supervision  over  the  subordinate  officers  and  the  public  in- 
terests of  their  districts.  They  were  empowered  to  impose  small  tines  in 
the  enforcement  of  their  authority,  and  to  hear  complaints  against  inferior 
officers  of  the  district,  but  beyond  this  extent  they  were  not  clothed  with 
any  judicial  functions. 

“Nor  did  the  Probate  Court  of  Solano  County  acquire  any  jurisdiction 
over  the  estate  of  the  deceased  after  the  transfer  of  the  papers  from  the 
Prefect.  The  statute  of  California  for  the  settlement  of  the  estates  of 
deceased  persons  has  no  application  to  the  estates  of  parties  who  died 
previous  to  the  organization  of  the  State  government.  This  was  ex- 
pressly held  by  the  Supreme  Court  of  California  in  Grimes’  Estate  vs. 
Norris,  with  reference  to  the  probate  of  a will  executed  in  1848  (6  Cal., 
621) ; and  the  ruling  in  this  respect  was  affirmed  by  the  same  Court  in 
the  subsequent  case  of  Tevis  vs.  Pitcher. — (10  Cal.,  465.)  The  act  which 
provides  for  the  probate  of  wills  also  regulates  the  manner  in  which  the 
estates  of  parties  dying  intestate  shall  be  closed,  and  is  equally  limited 
in  its  application  to  cases  arising  subsequent  to  the  adoption  of  the  con- 
stitution. It  was  obviously  the  intention  of  the  Legislature  to  leave  all 
estates  of  decedents  who  died  previously  to  be  settled  under  the  law  as 
it  then  existed;  and  such  is  the  ruling  in  a recent  case  of  the  Supreme 
Court  of  the  State. — (Downer  vs.  Smith,  24  Cal.,  114.) 

“ It  was,  therefore,  under  color  of  legal  proceedings,  every  step  of  which 
was  a nullity,  that  the  conveyance  of  the  alleged  administrator  was  exe- 
cuted. That  conveyance  enabled  the  purchasers,  and  parties  holding  un- 
der them,  to  present  the  grant  made  to  Hardy  by  the  Mexican  govern- 
ment to  the  Board  of  Land  Commissioners,  and  to  obtain  a confirmation 
of  the  claim  asserted  by  them  to  the  land  it  embraces,  and  ultimately  the 
patent  of  the  United  States.  Thus,  by  means  of  an  instrument  purport- 
ing to  transfer  the  interest  of  which  Hardy  died  possessed,  but  in  fact 
transferring  nothing,  they  obtained  a standing  before  the  federal  tribu- 
nals, and  have  secured  to  themselves  the  legal  title  from  the  government 
of  the  United  States.  It  is  the  possession  of  this  legal  title,  as  shown 
by  the  confirmation  and  patent,  which  precludes  the  complainants,  who 


318 


are  the  sole  surviving  heirs  of  the  deceased,  from  instituting  ov  maintain- 
ing ejectment  for  the  premises,  and  forces  them  to  seek  relief  from  a 
Court  of  Equity.  And  it  is  upon  the  confirmation  and  patent  that  the 
defendants  rely  to  resist  the  claim  of  the  complainants.  Their  position 
is  that  the  confirmation  enured  to  the  benefit  of  the  confirmees,  and  that 
the  patent  is  conclusive  evidence  of  the  validity  of  their  title  ; that  it  is 
the  record  of  the  government  upon  it,  which  cannot  be  questioned  ex- 
cept in  direct  proceedings  instituted  in  the  name  of  the  government  or 
by  its  authority. 

“ It  is  undoubtedly  true  that  the  confirmation  enured  to  the  benefit  of 
the  confirmees,  so  far  as  the  legal  title  to  the  premises  was  concerned.  It 
established  the  legal  title  in  them,  but  it  determined  nothing  as  to  the 
equitable  relations  between  them  and  third  parties.  The  object  of  the 
government  in  the  passage  of  the  act  of  March  3d,  1851,  was  to  separate 
the  public  lands  from  those  which  were  private  property,  and  to  discharge 
its  treaty  obligations  by  protecting  private  claims.  The  only  question 
in  which  the  government  was  concerned,  and  which  demanded  its  con- 
sideration, was  what  interests  in  land  had  the  former  sovereignty  parted 
with,  not  what  had  transpired  between  private  parties  subsequent  to  the 
action  of  that  sovereignty.  And  in  conformity  with  this  view  is  the  lan- 
guage of  the  Supreme  Court  of  the  United  States  in  Castro  vs.  Hendricks. 
— (23  How.,  412.)  After  stating  that  to  accomplish  the  purposes  of  the 
act  of  March  3,  1851,  every  person  claiming  lands  in  California  by  virtue 
of  any  title  or  right  derived  from  the  Spanish  or  Mexican  governments, 
was  required  to  present  the  same  to  a Board  of  Commissioners,  the  Court 
said  : ‘ The  mesne  conveyances  were  also  required,  but  not  for  any  aim  of 
submitting  their  operation  and  validity  to  the  Board,  but  simply  to  enable 
the  Board  to  determine  if  there  was  a bona  jicJe  claimant  before  it  under  a 
Mexican  grant;  and  so  this  Court  have  repeatedly  determined  that  the 
government  had  no  interest  in  the  contests  between  persons  claiming  ex 
post  facto  the  grant.’  And  the  Supreme  Court  of  California,  whilst  de- 
claring that  the  confirmation  enured  to  the  benefit  of  the  confirmee,  has 
in  frequent  instances  qualified  the  declaration  by  stating  that  equities 
between  the  confirmees  and  third  parties  remained  unaffected.  Thus,  in 
Estrada  vs.  Murphy  (19  Cal.,  272),  the  Court  said  : ‘ If  the  confirmee, 
in  presenting  his  claim,  acted  as  agent,  or  trustee,  or  guardian,  or  in  any 
other  fiduciary  capacity,  a Court  of  Equity,  upon  a proper  proceeding, 
will  compel  a transfer  of  the  legal  title  to  the  principal,  cestui  que  trust, 
ward,  or  other  party  equitably  entitled  to  the  same,  or  subject  it  to  the 
proper  trusts  in  the  confirmee’s  hands.  It  matters  not  whether  the  pre- 
sentation was  made  by  the  confirmee  in  his  own  name  in  good  faith,  or 
with  intent  to  defraud  the  actual  owner  of  the  claim,  a Court  of  Equity 
will  control  the  legal  title  in  his  hands  so  as  to  protect  the  just  rights  of 
others.’ 

“ The  patent  is  undoubtedly  a record  of  the  government  upon  the  title 
of  the  claimant.  Before  it  is  issued  numerous  proceedings  are  required 


319 


to  be  taken  before  the  tribunals  and  officers  of  the  United  States,  having 
for  their  object  the  ascertainment  of  the  validity  of  the  grant,  preferred 
under  Mexican  law  and  authorities,  and  the  identification  of  the  land  to 
which  it  is  or  should  be  restricted.  As  the  last  act  in  the  series  of  pro- 
ceedings, and  as  a result  of  those  previously  taken,  it  is  issued.  It  is, 
therefore,  record  evidence  on  the  part  of  the  government  that  the  pre- 
vious grant  was  genuine,  and  entitled  to  recognition  and  confirmation  by 
the  law  of  nations,  or  the  stipulations  of  the  treaty  between  Mexico  and 
the  United  States,  and  is  correctly  located  so  as  to  embrace  the  premises 
described.  Until  vacated  and  set  aside  by  proceedings  instituted  in  the 
name,  or  by  the  authority  of  the  government,  it  is  evidence  that  the  title 
had  passed  by  the  grant  from  the  former  government,  or  that  such  equi- 
ties had  existed  under  that  government  in  favor  of  the  alleged  grantee, 
as  to  require  or  justify  the  cession  of  the  title,  and  also  that  by  convey- 
ances, regular  on  their  face,  the  legal  title  had  apparently  passed  from 
the  grantee  to  the  claimant ; but  it  is  not  evidence  of  any  equitable  rela- 
tions of  the  holders  of  subsequent  conveyances  from  the  grantees  to 
each  other  or  to  third  parties,  for  such  relations  were  not  submitted  to 
the  tribunals  of  the  United  States  for  adjudication  in  the  settlement  of 
private  land  claims  under  Spanish  and  Mexican  grants. 

“ There  is  nothing  in  the  numerous  decisions  of  the  Supreme  Court  of 
the  State  upon  patents  of  the  United  States  which  militates  against  this 
view.  Those  decisions,  with  one  or  two  exceptions,  were  rendered  in  ac- 
tions of  ejectment,  and  only  affirmed  the  conclusiveness  of  the  patents  in 
determining  the  title  of  the  patentees  in  such  actions,  as  against  attempts 
to  resist  their  operation  by  parties  holding  either  under  unconfirmed 
grants,  or  by  alleged  pre-emption  and  settlement  under  the  laws  of  the 
United  States.  It  is  true,  it  is  said  in  Stark  vs.  Barret  (15  Cal.,  316),  that 
the  patent,  in  recognizing  the  validity  of  the  grant,  upon  the  confirmation 
of  which  it  is  issued,  necessarily  establishes  the  validity  of  all  properly  ex- 
ecuted intermediate  transfers  of  the  grantee’s  interest,  but  this  is  no 
more  than  saying  that  if  the  grant  was  valid,  a valid  title  was  transferred 
by  properly  executed  conveyances  of  the  grantee — a proposition  which 
requires  no  explanation.  And  the  decision  in  Clark  vs.  Lockwood  (20 
Cal.,  220),  to  which  counsel  refer,  only  goes  to  the  extent  of  declaring 
that  in  an  action  of  ejectment  by  the  vendee  of  the  confirmee,  it  is  un- 
necessary to  introduce  the  intermediate  conveyances  from  the  Mexican 
grantee  to  the  confirmee,  the  confirmation  being  an  adjudication  that  the 
legal  title  was  in  him  at  the  date  of  the  presentation  of  his  petition  to 
the  Land  Commissioners.  The  opinion  of  the  Court  expressly  limits  the 
conclusiveness  of  the  adjudication  to  the  legal  title  in  that  action,  and 
cites  from  the  case  of  Estrada  vs.  Murphy  to  show  that  equities  against 
such  titles  may  be  enforced  by  proper  proceedings  in  a Court  of  Equity. 

“ The  action  of  ejectment  deals  with  legal  titles ; the  patent  determines 
the  position  of  such  title,  and  when  the  patentee  is  other  than  the  Mexi- 
can grantee,  it  is  evidence  that  he  had  made  such  a prima  facie  showing 


before  the  proper  authorities  of  having  a transfer  of  the  grantee’s  interest, 
as  to  justify  its  having  been  issued  to  him.  In  the  opinions  filed  on  ren- 
dering the  decisions  in  the  State  Courts  cited  by  counsel,  though  relating 
to  the  legal  title,  reference  is  made  in  several  instances  to  possible  equi- 
ties of  third  parties,  for  the  purpose  of  qualifying  the  general  language 
used  as  to  the  conclusive  effect  of  the  patents,  and  to  direct  parties  assert- 
ing such  equities  to  the  proper  tribunal  for  relief.” 

The  Judge  then  referred  to  the  cases  of  Brush  vs.  Ware 
(15  Peters,  93),  Reeder  vs.  Barr  (4  Ohio,  458),  and  pro- 
ceeded as  follows  : 

“ The  principle  upon  which  these  decisions  proceed  is  the  familiar  one, 
that  where  a purchaser  cannot  make  out  his  title  except  through  an  in- 
strument which  leads  to  a particular  fact,  he  is  chargeable  with  notice  of 
such  fact. 

“ In  the  case  at  bar  the  principle  applies  and  is  a full  answer  to  those 
of  the  defendants  who  took  their  title  from  the  patentees.  The  patent, 
we  must  presume,  was  issued  in  the  ordinary  form  of  such  instruments 
upon  the  confirmation  of  a Mexican  grant,  with  a recital  of  the  existence 
of  the  grant,  the  conveyance  of  the  grantee’s  interest  by  the  administrator, 
the  confirmation  of  the  claim  under  the  grant,  its  survey  upon  the  con- 
firmation, and  the  approval  of  the  survey  by  the  proper  officers  of  the 
government.  Such  are  the  usual  recitals,  and,  of  course,  in  the  present 
case  they  directed  the  attention  of  all  subsequent  purchasers  to  the  ex- 
amination of  the  conveyance  of  the  administrator,  and  the  proceedings 
upon  which  it  was  made. 

“ The  position  that  the  complainants  are  not  entitled  to  relief  because 
by  the  act  of  March  3, 1851,  all  lands,  the  claim  to  which  was  not  present- 
ed within  two  years  thereafter,  were  to  be  deemed  part  of  the  public  do- 
main, hardly  merits  serious  consideration.  It  cannot  be  affirmed  that  if 
the  sale  by  tlie  administrator  had  not  taken  place,  friends  of  the  deceased 
would  not  have  made  efforts  to  ascertain  whether  there  were  any  heirs  to 
the  estate,  and  have  not  succeeded  in  finding  them  ; nor  that  the  property 
would  not  have  been  taken  in  charge  by  officers  of  the  State  as  a vacant 
inheritance,  and  the  grant  presented  for  adjudication  to  the  proper  tri- 
bunals of  the  United  States  ; nor  that  relief  might  not  have  been  afforded 
the  heirs  when  the  property  was  discovered  by  appropriate  legislation. 
The  finder  of  personal  property  might  with  equal  propriety  justify  its 
retention  on  the  ground  that  the  true  owner  would  never  have  found  it. 

“ The  claim  presented  by  the  claimants,  resting  upon  solid  principles 
of  justice  and  right,  must  be  sustained,  upon  the  showing  of  the  bill,  un- 
less barred  by  the  statute  of  limitations. 

“ The  statute  of  limitations  of  this  State  is  peculiar.  It  differs  essen- 
tially from  the  English  statute,  and  from  the  statute  of  limitations  in 
force  in  most  of  the  other  States  of  the  Union.  Those  statutes,  in 
terms,  apply  only  to  particular  legal  remedies,  and  Courts  of  Equity 


321 


are  said  to  be  bound  by  them  only  in  cases  of  concurrent  jurisdiction, 
and  in  other  cases  to  act  only  by  analogy  to  tlie  statutes,  and  not  in 
obedience  to  them.  But  in  this  State  the  statute  applies  both  to  equita- 
ble and  to  legal  remedies.  It  is  directed  to  the  subject-matter,  and  not 
to  the  form  of  the  action  or  the  tribunal  before  which  it  is  prosecuted. 
Such  is  the  language  of  the  Supreme  Court,  the  only  authoritative  inter- 
preter of  the  laws  of  the  State. — (Lord  vs.  Morris,  18  Cal.,  486.) 

“ The  question  then  is,  whether  the  statute  barred  the  relief  prayed, 
and  not  whether,  as  insisted  by  counsel,  the  claim  on  general  principles 
adopted  in  the  administration  of  equity  is  a stale  claim,  although  we 
may  add  on  this  latter  head  that  the  claim  has  upon  such  principles  no 
feature  that  should  bar  its  enforcement  on  that  ground.  The  statute 
provides  that  certain  actions  shall  be  brought  within  three  years  after 
the  cause  of  action  shall  have  accrued,  but  declares  that  in  action  for  re- 
lief on  the  ground  of  fraud,  the  cause  of  action  ‘ shall  not  be  deemed  to 
have  accrued  until  the  discovery  by  the  aggrieved  party  of  the  facts  con- 
stituting the  fraud.'  This  exception  covers  the  case  at  bar.  The  pat- 
entees secured  to  themselves  the  legal  title  by  the  presentation  to  the 
Board  of  Land  Commissioners  of  a worthless  document  as  a transfer  of 
the  grantee’s  interest,  and  they  prosecuted  a claim  under  this  document 
for  years.  By  these  proceedings  a fraud  was  committed  upon  the  heirs  of 
Hardy,  and  not  until  its  discovery  did  the  statute  commence  running 
against  their  rights.  The  bill  avers  such  discovery  within  the  years  pre- 
scribed. And  the  defendants  who  took  title  under  the  patentees  are  charge- 
able with  notice  of  the  character  of  the  claim  under  which  the  patentees 
secured  the  title,  and,  consequently,  are  precluded  from  protection  as  in- 
nocent purchasers.  They  are,  therefore,  chargeable  with  constructive 
fraud  in  taking  title  from  the  patentees,  however  ignorant  in  fact  of  the 
rights  of  the  heirs,  and  however  honest  in  their  intentions  they  may  have 
been.  ‘Another  class  of  constructive  frauds,’  says  Mr.  Justice  Story,  after 
enumerating  several  classes,  ‘consists  of  those  where  a person  purchases 
with  full  notice  of  the  legal  or  equitable  title  of  other  persons  to  the 
same  property.  In  such  cases  he  will  not  be  permitted  to  protect  him- 
self against  such  claims  ; but  his  own  title  will  be  postponed  and  made 
subservient  to  theirs.’  ” 

This  ease  is  reported  in  4th  lawyer,  536.  Its  doctrine 
was  affirmed  in  Norton  vs.  Meader,  Ibid.,  604. 

Hall  vs.  Huger. 

California  passed  under  the  jurisdiction  of  the  United 
States  on  the  7th  of  July,  1846;  at  least  at  that  date  the 
forces  of  the  United  States  took  possession  of  Monterey, 
the  Capital  of  the  Department,  and  from  it  the  authority 


of  Mexican  officials  over  the  country  is  regarded  by  the 
political  department  of  the  government,  as  having  ceased. 
In  that  respect  the  judiciary  follows  the  action  of  the  politi- 
cal department. — (United  States  vs.  Yorba,  1 Wall.,  423.) 
At  that  time  there  was  a Mexican  pueblo  at  the  site  of 
the  present  city  of  San  Francisco.  This  term,  “ pueblo,” 
has  all  the  vagueness  of  signification  of  the  English  word 
“ town,”  and  is  applied  indiscriminately  to  a mere  collec- 
tion of  individuals  residing  at  a particular  place,  a settle- 
ment, a village,  and  also  to  a regularly  organized  munici- 
pality. The  pueblo  at  San  Francisco,  was  a small  settle- 
ment, though  it  was  of  sufficient  importance,  as  early  as 
1835,  to  have  a Council  [Ayuntamiento] , composed  of 
alcaldes  and  other  officers,  for  its  government.  When 
our  forces  took  possession  of  the  town,  citizens  of  the 
United  States  were  appointed,  by  the  military  and  naval 
commanders,  to  act  as  alcaldes  in  place  of  the  Mexican  of- 
ficers. 

Under  the  laws  of  Mexico,  a pueblo — or  town — when 
once  recognized  as  such  by  public  authority,  became  en- 
titled to  the  use  of  four  square  leagues  of  land,  embracing 
its  site  and  adjoining  country.  San  Francisco,  as  a pueblo, 
asserted  a claim  to  such  lands.  The  Mexican  alcaldes  were 
authorized  to  distribute  these  lands  in  small  tracts  to  the 
inhabitants  of  the  town  for  building,  cultivation,  or  other 
uses,  the  remainder  being  reserved  for  commons  or  other 
public  purposes.  The  American  alcaldes,  appointed  by 
our  military  or  naval  commanders,  at  once  asserted  a right 
to  exercise  this  power  of  distribution,  and  as  a consequence 
they  had  numerous  applications  for  grants,  some  of  which 
were  from  officers  of  the  army  and  navy. 

In  December,  1848,  John  Hall,  a lieutenant  in  the  navy, 
received  from  Alcalde  Leavenworth  a grant  of  a hundred- 
vara  lot,  that  is,  a lot  two  hundred  and  seventy-five  feet 
square.  Whatever  title  the  city,  or  the  State,  or  the  United 
States  may  have  possessed  to  the  land,  was  afterwards  re- 
linquished by  city,  state,  and  congressional  legislation. 


Ilis  title,  therefore,  if  not  so  at  the  time,  subsequently  be- 
came perfect. 

In  1849  Hall  became  unwell,  and  his  health  was  so  much 
affected  that  he  was  sent  from  California  to  the  Eastern 
States  in  the  charge  of  a physician.  He  arrived  in  Hew 
York  and  joined  his  family  in  June,  1849,  and  remained 
with  them  until  June,  1851.  During  this  period  there 
were  such  indications  of  insanity  that,  by  the  advice 
of  his  physician  and  consent  of  his  family,  he  was  sent  to 
the  asylum  at  Frankford.  There  he  remained  under  treat- 
ment for  insanity  until  January,  1854,  when  he  was  re- 
moved to  the  State  insane  asylum,  where  he  died  in  Sep- 
tember, 1860. 

On  the  27th  of  December,  1852,  whilst  he  was  in  the 
asylum  at  Frankford,  he  signed  a power  of  attorney  to  one 
James  W.  Harris,  empowering  him  to  sell  and  convey  the 
lot  in  San  Francisco,  and  also  to  appoint  a substitute  to 
act  for  him.  This  power  bore  a certificate  of  due  acknowl- 
edgment before  a commissioner  of  California,  resident  in 
Pennsylvania.  The  attorney  mentioned  appointed  one 
David  B.  Rising  as  bis  substitute,  and  he,  as  such  sub- 
stituted attorney,  executed  a conveyance  to  parties  who 
entered  into  possession  of  the  premises.  Against  them  the 
widow  and  heirs  of  the  deceased  Hall  brought  ejectment 
for  the  property,  contending  that,  at  the  time  the  power  of 
attorney  purported  to  have  been  executed,  Hall  was  in- 
sane, and  incapable,  by  reason  of  his  insanity,  of  attend- 
ing to  any  business. 

The  case  was  tried  at  the  October  term  of  1867,  with  a 
jury,  whom  Judge  Field  charged,  as  follows: 

“ Gentlemen,  I do  not  propose  to  attempt  any  nice  or  philosophical 
exposition  of  the  subject  of  insanity.  I should  certainly  fail  if  I made 
the  attempt ; and  if  I could  succeed,  the  result  would  not  he  of  any  ser- 
vice to  you  in  determining  this  case.  Any  elaborate  and  extended  dis- 
sertation. if  it  were  possible  for  me  to  present  such  a one,  would  only 
tend  to  perplex  and  confuse  your  minds.  I shall  make  a few  plain  ob- 
servations on  this  subject,  and  refer  to  the  rules  laid  down  by  the  au- 
thorities to  guide  you  in  considering  it,  and  then  call  your  attention 
briefly  to  the  evidence  in  the  case. 

22 


324 


“The  physicians  who  have  been  examined,  and  the  text-writers, 
declare  that  it  is  impossible  to  give  any  consistent  definition  of  insanity  ; 
that  no  words  can  comprise  the  different  forms  and  characters  which  this 
malady  may  assume.  The  most  common  forms,  in  which  it  presents 
itself,  are  those  of  mania,  monomania,  and  dementia.  All  these  imply 
a derangement  of  the  faculties  of  the  mind  from  their  normal  or  natu- 
ral condition.  Idiocy,  which  is  usually  classed  under  the  general  des- 
ignation of  insanity,  is  more  property  the  absence  of  mind  than  the 
derangement  of  its  faculties  ; it  is  congenital,  that  is,  existing  at  birth, 
and  consists  not  in  the  loss  or  derangement  of  the  mental  powers,  but  in 
the  destitution  of  powers  never  possessed. 

“ Mania  is  that  form  of  insanity  w here  the  mental  derangement  is 
accompanied  with  more  or  less  of  excitement.  Sometimes  the  excite- 
ment amounts  to  a fury.  The  individual  in  such  cases  is  subject  to  hal- 
lucinations and  illusions.  He  is  impressed  with  the  reality  of  events 
which  have  never  occurred,  and  of  things  which  do  not  exist,  and  acts 
more  or  less  in  conformity  with  his  belief  in  these  particulars.  The 
mania  may  be  general  and  affect  all  or  most  of  the  operations  of  the 
mind;  or  it  may  be  partial,  and  be  confined  to  particular  subjects.  In 
the  latter  case  it  is  generally  termed  monomania. 

“ Dementia  is  that  form  of  insanity  where  the  mental  derangement  is 
accompanied  with  a general  enfeeblement  of  the  faculties.  It  is  charac- 
terized by  forgetfulness,  inability  to  follow  any  train  of  thought,  and 
indifference  to  passing  events.  ‘ In  dementia,’  says  Ray,  a celebrated 
writer  on  medical  jurisprudence,  ‘the  mind  is  susceptible  of  only  feeble 
and  transitory  impressions,  and  manifests  but  little  reflection  even  upon 
these.  They  come  and  go  without  leaving  any  trace  of  their  presence 
behind  them.  The  attention  is  incapable  of  more  than  a momentary 
effort,  one  idea  succeeding  another  with  but  little  connection  or  cohe- 
rence. The  mind  has  lost  the  power  of  comparison,  and  abstract  ideas 
are  utterly  beyond  its  grasp.  The  memory  is  peculiarly  weak  ; events 
the  most  recent  and  most  nearly  connected  with  the  individual  being 
rapidly  forgotten.  The  language  of  the  demented  is  not  only  incohe- 
rent, but  they  are  much  inclined  to  repeat  isolated  words  and  phrases 
without  the  slightest  meaning.’ 

“ These  common  forms  of  insanity — mania,  monomania,  and  dementia — 
present  themselves  in  an  infinite  variety  of  ways,  seldom  exhibiting 
themselves  in  any  two  cases  exactly  in  the  same  manner.  Mania  some- 
times affects,  as  already  observed,  all  the  operations  of  the  mind;  and 
sometimes  the  mental  derangement  appears  to  be  limited  to  particular 
subjects.  An  absence  of  reason  on  one  matter,  indeed  on  many  matters, 
may  exist,  and  at  the  same  time  the  patient  may  exhibit  a high  degree 
of  intelligence  and  wisdom  on  other  matters.  The  books  are  full  of  such 
cases.  Many  of  them  have  been  cited  to  you  by  counsel  on  the  argu- 
ment. They  show',  indeed, ta  want  of  entire  soundness  of  mind;  they 
show  partial  insauity,  but  this  does  not  necessarily  unfit  the  individuals 


affected  tor  the  transaction  of  business  on  all  subjects.  Tn  a case  which 
arose  in  the  Prerogative  Court  of  England  (Dew  vs.  Clark,  3 Addams 
Eccl.  R.,  T9),  it  was  said  by  counsel  that  partial  insanity  was  something 
unknown  to  the  law  of  England.  To  this  suggestion  the  Court  replied: 

‘ If  he  meant  by  this  that  the  law  of  England  never  deems  a person  both 
sane  and  insane  at  the  same  time  upon  one  and  the  same  subject,  the 
assertion  is  a mere  truism.  But  if  bv  that  position  he  meant  and  in- 
tended that  the  law  of  England  never  deems  a party  both  sane  and 
insane  at  different  times  on  the  same  subject,  and  both  sane  and  insane 
at  the  same  time  on  different  subjects,  there  can  scarcely  be  a position 
more  destitute  of  legal  foundation,  or  rather  there  can  scarcely  be  one 
more  adverse  to  the  current  of  legal  authority.’  In  that  case  the  Court 
cited  the  language  of  Locke,  that  ‘a  man  who  is  very  sober  and  of  a 
right  understanding  in  all  other  things,  may,  in  one  particular,  be  as 
frantic  as  any  man  -in  Bedlam  and  of  Lord  Hale,  who  says,  ‘ There  is  a 
partial  insanity  of  mind  and  a total  insanity  ; in  the  first,  as  it  respects 
particular  things  or  persons,  or  in  respect  of  degrees,  which  is  the  condi- 
tion with  very  many,  especially  melancholy  persons,  who  for  the  most 
part  discover  their  defect  in  excessive  fears  and  grief,  and  yet  are  not 
wholly  destitute  of  the  use  of  reason.’ 

“So,  too,  in  dementia,  where  there  is  a general  enfeeblement  of  the 
mental  powers,  there  is  not  usually  equal  weakness  exhibited  on  all  sub- 
jects, nor  in  all  the  faculties.  Those  matters  which,  previous  to  the  exist- 
ence of  the  malady,  the  patient  frequently  thought  of  and  turned  over 
in  his  mind,  are  generally  retained  with  greater  clearness  than  less  fam- 
iliar objects.  One  faculty  may  be  greatly  impaired — the  memory,  for  ex- 
ample— while  other  faculties  retain  some  portion  of  their  original  vigor. 
The  disease  is  of  all  degrees  from  slight  weakness  to  absolute  loss  of  rea- 
son. The  enfeeblement  usually  progresses  gradually — through  a twilight, 
as  it  were,  of  reason,  before  the  darkness  of  night  settles  upon  the  mind. 

“ It  is  important  to  bear  these  observations  in  mind,  for  it  does  not  fol- 
low from  tbe  fact  that  mania  or  dementia  be  shown,  that  there  may  not 
be  reason  or  capacity  for  business  on  some  subjects.  In  determining  the 
ability  of  the  alleged  insane  person  to  execute  any  particular  act,  the  in- 
quiry should  first  be,  what  degree  of  mental  capacity  is  essential  to  the 
proper  execution  of  the  act  in  question  ; and  then  whether  such  capacity 
was  possessed  at  the  time  by  the  party.  It  is  evident  that  a very  differ- 
ent degree  of  capacity  is  required  for  the  execution  of  a complicated  con- 
tract, and  a single  transaction  of  a simple  character,  like  the  purchase  or 
sale  of  a lot. 

“ The  act  done  in  the  case  at  bar  was  the  execution  of  a power  of  attor- 
ney to  sell  three  lots  in  San  Francisco.  The  act  required  no  greater 
exercise  of  reason  than  is  essential  to  the  valid  execution  of  a will 
of  real  property;  and  the  authorities  which  determine  the  degree 
of  capacity  essential  in  such  cases  may  properly  be  relied  upon  as 
furnishing  the  proper  rule  in  this  case.  And  those  authorities  con- 


326 


cur,  especially  the  later  authorities,  substantially  in  this:  that  it  is 
only  necessary  to  the  validity  of  the  will  that  the  testator  had  suffi- 
cient  mind  and  memory  to  understand  the  business  upon  which  he  was 
engaged,  and  the  effect  of  the  act  he  was  doing.  1 He  must,’  in  the  lan- 
guage of  Judge  Washington,  in  Harrison  vs.  Rowan  (3  Wash.  Cir.  Ct,, 
585),  ‘ have  a sound  and  disposing  mind  and  memory.  In  other  words, 
he  ought  to  be  capable  of  making  his  will,  with  an  understanding  of  the 
nature  of  the  business  in  which  he  is  engaged — a recollection  of  the  prop- 
erty he  means  to  dispose  of — of  the  persons  who  are  the  objects  of  his 
bounty,  and  the  manner  in  which  it  is  to  be  distributed  between  them. 
It  is  not  necessary  that  he  should  view  his  will  with  the  eye  of  a lawyer, 
and  comprehend  its  provisions  in  their  legal  form.  It  is  sufficient  if  he 
has  such  a mind  and  memory  as  will  enable  him  to  understand  the  ele- 
ments of  which  it  is  composed — the  distribution  of  his  property  in  its 
simple  forms.  It  is  the  business  of  the  testator  to  dictate  the  purposes 
of  his  mind,  and  of  the  scrivener  to  express  them  in  legal  form.’ 

“ It  is  true,  as  stated  by  counsel,  that  the  authorities  generally  go  to 
the  extent  that  it  requires  less  intelligence  and  reason  to  make  a will 
than  to  execute  a contract ; but  for  the  execution  of  an  act  of  a simple 
character,  not  involving  complicated  details,  and  provisions,  the  rule  laid 
down  by  Judge  Washington  is  sufficiently  stringent. 

“According  to  that  rule,  it  was  material  to  the  valid  execution  of  the 
power  in  this  case,  that  Hall  should  at  the  time  have  possessed  sufficient 
mind  and  memory  to  understand  the  nature  of  the  business  he  was  en- 
gaged in,  to  know  the  character  and  location  of  the  property,  and  the  ob- 
ject and  effect  of  the  act  he  was  doing ; in  other  words,  it  was  essential 
that  heshould  recollect  that  he  was  the  owner  of  the  property  mentioned  ; 
that  such  property  was  situated  in  the  city  of  San  Francisco,  and  that  the 
instrument  conferred  authority  for  the  sale  of  the  same. 

“ In  considering  this  case,  it  is  to  be  remembered  that  the  law  presumes 
that  every  adult  man  is  sane,  and  possessed  of  the  absolute  right  to  sell 
and  dispose  of  his  property  in  whatever  way  he  may  choose — his  will  in 
every  case  standing  as  the  reason  of  his  conduct.  Whoever  denies  his 
sanity  must  establish  the  position  ; the  burden  of  proof  rests  upon  the 
party  who  alleges  the  mental  derangement.  And  if,  as  in  the  present 
case,  the  validity  of  a particular  act  is  assailed,  the  assailant  must  estab- 
lish that  at  the  time  the  act  was  done  the  insanity  existed.  Testimony 
as  to  previous  or  subsequent  insanity  will  not  answer,  unless  the  insanity 
be  shown  to  be  habitual — that  is,  such  as  is  in  its  nature  continuous  and 
chronic.  The  fact  of  the  existence  of  a prior  or  subsequent  lunacy,  ex- 
cept where  it  is  habitual,  does  not  suffice  to  change  the  burden  of  proof. 
The  case  is,  however,  otherwise  when  such  habitual  insanity  is  shown  to 
have  existed — then  the  presumption  is  that  the  party  was  insane  at  the 
time  and  the  burden  of  proof  rests  with  those  who  allege  the  party’s 
competency. 

“ Again,  in  considering  whether  a particular  act  assailed  for  the  alleged 
insanity  of  the  party  was  valid  or  not,  regard  must  be  had,  in  the  absence 


of  direct  testimony  on  the  point,  to  all  the  attending  circumstances — the 
reasonableness  of  the  act  in  itself,  and  its  approval  by  the  family  and 
relatives  of  the  party.  The  reasonableness  of  the  act,  and  the  approval 
of  the  family  and  relatives  will  not  render  the  act  valid,  if  the  party 
were  at  the  time  insane,  but  they  are  circumstances  tending  to  show  that 
the  party  was  not  at  the  time  incompetent,  and  that  his  family  and  rela- 
tives did  not  so  regard  and  treat  him. 

“ In  this  case  it  appears  that  the  lot  in  controversy  was  at  the  time  in 
the  adverse  possession  of  others,  and  that  the  Supreme  Court  of  the  State 
had  decided  that  Alcalde  grants  conferred  no  title.  A sale  of  his  interest, 
if  anything  could  be  obtained  for  it,  under  the  circumstances,  would  seem 
to  have  been  a judicious  and  a wise  step. 

“ The  only  testimony  which  relates  directly  to  the  time  of  the  execu- 
tion of  the  power  is  that  of  Broadhead,  the  witness  to  the  instrument, 
and  the  officer  before  whom  it  was  acknowledged.  It  was  the  duty  of 
this  officer  to  satisfy  himself  of  the  competency  of  Hall  before  attesting 
the  instrument.  As  said  by  the  Supreme  Court  of  Pennsylvania  in 
Werstlee  vs.  Custer  (10  Penn.,  503),  ‘No  honest  man  will  subscribe  as 
a witness  to  a will,  or  any  other  instrument  executed  by  an  insane  man, 
an  imbecile,  an  idiot,  or  a person  manifestly  incompetent  for  any  reason 
to  perform,  with  legal  effect,  the  act  in  question.  A duty  attaches  to  the 
witness  to  satisfy  himself  of  the  competency  of  the  party  before  he  lends 
his  name  to  attest  the  act.  Like  the  magistrate  who  takes  the  acknowl- 
edgment of  a deed,  he  is  to  be  reasonably  assured  of  the  facts  he  under- 
takes to  verify,  else  he  makes  himself  instrumental  in  a fraud  upon  the 
public.  And,  therefore,  the  legal  presumption,  always  favorable  to  com- 
petency, is  greatly  strengthened  by  the  fact  of  attestation  by  witnesses.’ 

“ Such  is  the  general  effect  of  the  attestation  of  a witness  and  officer, 
but  whether  the  attestation  in  the  present  case,  under  the  peculiar  cir- 
cumstances in  which  it  was  made,  can  add  anything  to  the  legal  pre- 
sumption of  competency  may  well  be  doubted.  It  is  a circumstance 
worthy  of  consideration,  whether  the  Commissioner  should  have  gone  to 
the  asylum  to  take  the  acknowledgment  of  an  inmate  of  the  instit  ution, 
with  whom  he  had  no  previous  acquaintance,  without  information  from 
the  officers  of  the  institution,  that  the  patient  at  the  time  was  in  posses- 
sion of  sufficient  reason  to  understand  the  business,  which  it  was  pro- 
posed lie  should  execute. 

“ Broadhead  testifies  that  he  went  to  the  Frankford  Asylum  to  take  the 
acknowledgment  of  Hall,  with  whom  he  was  not  previously  acquainted  ; 
that  he  read  the  power  to  Hall,  and  handed  it  to  him  to  read,  and  asked 
him  if  he  understood  it;  that  Hall  replied  ‘perfectly,’  or  words  to  that 
effect,  and  that  the  property  was  valuable,  and  that  he  wanted  it  sold  for 
the  benefit  of  his  wife  and  children.  The  Commissioner  also  testifies  that 
he  could  not  have  believed  Hall  was  on  all  subjects  of  sound  mind  from 
the  simple  fact  that  he  was  an  inmate  of  the  asylum,  but  that  as  to  the 
power  of  attorney  Hall  was  clear  as  to  what  he  was  giving ; that  there 


was  Nothing  in  his  appearance  which  led  the  Commissioner  to  suppose  he 
was  insane,  and  from  the  fact  that  he  stated  that  he  wanted  the  property 
to  be  sold,  the  Commissioner  was  led  to  believe  he  had  a lucid  interval. 
The  witness  adds  that  he  would  not  have  permitted  Hall  to  execute  the 
instrument,  and  he  would  not  himself  have  taken  the  acknowledgment, 
unless  Hall  had  been  of  sufficient  mind,  memory,  judgment,  and  under- 
standing to  execute  such  a paper. 

‘‘Aside  from  the  peculiar  circumstances  under  which  the  Commissioner 
acted,  there  is  one  fact  in  his  testimony,  which  should  be  considered  by 
you  as  throwing  possibly  some  light  on  the  condition  of  Hall’s  mind  at 
the  time,  somewhat  in  conflict  with  the  Commissioner’s  own  opinion.  He 
states  that  Hall  at  first  wrote  something  besides  his  signature  to  the  in- 
strument. The  instrument  itself  shows  that  there  has  been  an  erasure 
of  something  near  the  signature.  The  Commissioner  states,  as  his  im- 
pression, that  Hall  wrote  some  other  name  than  his  own.  This  is  at  least 
a singular  circumstance,  if,  as  stated  by  the  Commissioner,  he  had  heard 
the  instrument  read  and  perfectly  understood  its  purport. 

“ We  will  now  briefly  refer  to  the  testimony  produced  by  the  plaintiffs 
to  show  the  general  insanity  of  Hall  at  the  time  he  executed  the  power 
in  question.  If  he  was  then  insane,  and  his  insanity  was  general,  the  in- 
strument was  a nullity,  and  no  title  could  be  transferred  under  it.  In 
that  case  the  plaintiffs  are  entitled  to  a verdict.  It  matters  not,  if  such 
were  the  case,  what  consideration  may  have  been  paid  to  the  attorney,  or 
with  what  good  faith  the  parties  may  have  purchased.  The  instrument 
in  such  case  is  no  more  to  be  regarded  as  the  act  of  John  Hall  than  if  he 
was  dead  at  the  time  of  its  execution.” 

The  Judge  then  commented  at  length  upon  the  testi- 
mony and  submitted  the  case.  The  jury  found  a verdict 
for  the  plaintiffs  and  judgment  was  entered  in  their  favor. 
Afterwards  the  case  was  taken  to  the  Supreme  Court  of  the 
United  States,  where  the  judgment  was  affirmed,  ft  is  re- 
ported under  the  title  of  Dexter  vs.  Hall  (15  Wall.,  9). 

Montgomery  vs.  Bevans. 

In  the  preceding  case  an  account  is  given  of  the  pueblo 
of  San  Francisco,  existing  on  the  acquisition  of  California, 
its  claim  to  the  use  of  four  square  leagues  of  land,  and  the 
power  exercised  by  its  Alcaldes  to  make  grants  of  portions 
of  such  lands  to  individuals  for  building,  cultivation,  and 
other  purposes. 

On  the  1st  of  December,  1846,  a grant  was  made  of  a 
fihw-vara  lot,  that  is,  a lot  of  one  hundred  and  thirty -seven 


329 


and  a half  feet  square,  within  the  limits  of  San  Franoisco, 
to  John  E.  Montgomery,  by  Alcalde  Bartlett,  of  that  place. 
Subsequently— in  February,  1847 — a grant  for  the  same 
premises  was  made  to  Andrew  J.  Grayson  by  Alcalde 
Bryant,  of  the  town. 

The  question  presented  to  the  Court  for  decision  was, 
whether  the  first  grant  ever  took  effect,  and  that  depends 
upon  the  further  question  whether,  at  the  time  that  it  was 
made,  the  grantee  was  living.  On  the  15th  of  November 
preceding  he  left  the  United  States  vessel -of- war,  the 
Portsmouth,  then  lying  in  the  harbor  of  San  Francisco,  in 
a launch,  with  others,  and  was  never  afterwards  heard 
from.  He  was  never  married  and  left  no  will,  and  by  the 
law  of  California  the  father  takes  the  estate  of  a child 
dying  intestate. 

This  suit  was  brought  by  the  father  to  recover  the  prem- 
ises, and  was  tided  by  the  Court  without  the  intervention 
of  a jury,  by  stipulation  of  the  parties,  in  August,  1871. 

In  his  opinion  deciding  the  case,  Judge  Field  said  as  fol- 
lows: 

“ The  testimony  of  the  plaintiff  which  proves  the  delivery  of  the  grant, 
also  proves  the  death  of  the  grantee,  or  rather  proves  that  he  has  not  been 
heard  from  since  the  fifteenth  of  November,  1846,  and  the  law  presumes 
the  death  of  a person  who  has  not  been  heard  from  for  the  period  of 
seven  years.  The  plaintiff  claims  the  premises  as  the  heir  of  the  grantee, 
and  relies  upon  the  presumption  of  law  as  to  the  grantee’s  death  to  estab- 
lish his  case.  And  at  the  same  time  he  relies  upon  what  he  insists  is  a 
presumption  of  law  of  equal  force,  that  the  grantee  having  been  shown 
to  be  alive  on  the  15th  of  November.  1846,  continued  alive  until  the  lapse 
of  seven  years,  when  the  presumption  of  death  arose.  The  counsel  for 
the  defendants,  ou  the  other  hand,  contend  that  there  is  no  presumption 
of  the  continuance  of  life  during  this  period  of  seven  years,  and  that  the 
plaintiff  asserting  that  the  grantee  was  alive  on  the  1st  day  of  December, 

1346,  as  he  must  do  to  give  efficacy  to  the  grant  of  the  Alcalde,  is  bound 
to  prove  the  fact,  and  failing  to  do  so  his  claim  of  title  falls  to  the  ground. 

The  argument  upon  which  this  position  is  based  is  substantially  this: 

The  presumption  of  death  arises  from  the  lapse  of  time  since  the  party 
has  been  heard  from;  for  it  is  considered  extraordinary  if  he  was  alive 
that  he  should  not  be  heard  of  during  this  period.  Now,  if  he  is  to  be  # 

presumed  to  be  alive  up  to  the  last  day  but  one  of  the  seven  years,  there 
is  nothing  extraordinary  in  his  not  having  been  heard  of  on  the  last  day, 


330 

and  the  previous  lapse  of  time  during  which  lie  was  not  heard  of  becomes 
immaterial  by  reason  of  the  assumption  that  he  was  living  so  lately. 
Language  similar  to  this  is  found  in  the  opinion  of  the  Exchequer  Cham- 
ber in  the  case  of  Knight  vs.  Nepean  (2  Mees.  and  Weis.,  895),  and  hence 
counsel  argue  that  there  is  no  presumption  in  favor  of  the  continuance  of 
life  during  the  penumbra,  or  death  period,  of  seven  years,  for  if  such  pre- 
sumption prevailed  for  one  day  after  disappearance  proved,  it  would  nec- 
essarily prevail  for  six  years  and  3(14  days,  and  the  whole  basis  upon 
which  the  presumption  of  death  rests  would  become  absurd.  The  cases 
of  Doe  vs.  Nepean,  decided  by  the  Court  of  King’s  Bench,  of  Knight  vs. 
Nepean,  mentioned  above,  decided  by  the  Exchequer  Chamber,  and  the 
case  of  In  re  Phen6  Trusts,  recently  decided  by  the  Court  of  Appeal  in 
Chancery  in  England,  are  cited  in  support  of  this  position 

“ In  Doe  vs.  Nepean  (5  Bara,  and  Adolph,  86)  the  lessor  of  the  plaintiff 
claimed  the  premises  in  controversy  by  title  accruing  on  the  death  of  one 
Matthew  Knight,  who  left  England  for  America  in  1806  and  was  not 
heard  of  after  1807.  The  action  was  brought  in  1832,  and  the  question 
at  the  trial  was  whether  the  action  was  barred  by  the  statute,  which  lim- 
ited the  entry  of  a person  into  lands  to  twenty  years  after  title  accrued. 
It  was  admitted  that  Knight  must  be  presumed  to  have  died,  more  than 
seven  years  having  elapsed  since  he  was  heard  of,  and  if  that  presumption 
were  referable  to  the  time  when  the  last  intelligence  was  received  of  him, 
1807,  the  action  was  brought  too  late  ; but  if  it  arose  only  when  seven 
years  had  elapsed  from  the  receipt  of  such  intelligence  the  action  was  in 
time.  The  judge  before  whom  the  case  was  tried  was  of  opinion  that 
the  presumption  of  death  only  arose  at  the  expiration  of  the  period  of 
seven  years,  or  in  other  words,  that  the  presumption  of  life  continued  un- 
til that  time,  and  directed  a verdict  for  the  plaintiff,  with  leave  to  the 
defendant  to  move  for  a non-suit.  After  argument  upon  the  motion  the 
Court  of  the  King’s  Bench  held  that  the  lessor  of  the  plaintiff  who  gave 
no  other  evidence  of  Knight’s  death  than  his  absence,  failed  to  establish 
that  his  death  took  place  within  twenty  years  before  the  action  was 
brought.  Mr.  Chief  Justice  Denman,  in  giving  the  opinion  of  the  Court, 
observed  that  though  absence  of  a person  for  seven  years  without  being 
heard  of  naturally  led  the  mind  to  believe  he  was  dead,  and  therefore 
was  sufficient  to  warrant  a presumption  of  fact  that  he  was  dead  at  the 
end  of  that  period,  it  raised  no  inference  as  to  the  exact  time  of  his  death, 
and  still  less  that  death  took  place  at  the  end  of  seven  years. 

“ In  the  case  of  Knight  vs.  Nepean,  which  was  another  action  of  eject- 
ment for  the  same  premises,  the  same  question  was  considered  by  the  Ex- 
chequer Chamber  (2  Mees.  & "Wells.,  805),  and  after  elaborate  argument, 
the  doctrine  laid  down  in  Doe  vs.  Nepean  was  approved,  the  Court  ob- 
serving in  its  opinion  that  when  nothing  is  heard  of  a person  for  seven 
years,  it  is  matter  of  complete  uncertainty  at  what  point  of  time  in  those 
seven  years  he  died,  and  that  of  all  the  points  of  time,  the  last  day  is  the 
most  improbable  and  inconsistent  with  the  ground  of  presuming  the  fact 


of  death.  And  yet,  in  the  opinion  both  of  the  King’s  Bench,  in  Doe  vs. 
Nepean,  and  of  the  Exchequer  Chamber,  iu  this  case,  it  is  stated  that  the 
law  presumes  that  a person  once  shown  to  be  alive  continues  so  until  the 
contrary  be  shown,  and  that  for  this  reason  the  onus  of  establishing  the 
death  of  Knight  rested  upon  the  lessor  of  the  plaintiff.  The  presump- 
tion of  the  continuance  of  life,  thus  stated,  is  inconsistent  with  the  con- 
clusions reached  in  both  cases.  If  the  presumption  of  life  exists  until 
death  is  shown,  it  is  difficult  to  perceive  why  it  should  not  continue, 
when  death  is  not  shown,  until  the  period  is  reached  at  which  the  law 
has  fixed  as  the  commencement  of  a different  presumption.  Clearly 
there  is  no  rule  or  principle  which  can  limit  its  continuance  at  any  period 
within  the  seven  years,  if  it  be  admitted  to  exist  at  all. 

“In  the  case  of  Phene  Trusts  (Law  Rep.,  5,  Chan.  Appeals,  139)  the 
Court  of  Appeal  in  Chancery  held,  after  elaborate  consideration,  that  the 
time  at  which  a person  died  within  the  seven  years  was  not  a matter  of 
presumption,  but  of  proof;  also,  that  there  was  no  presumption  in  favor 
of  the  continuance  of  life  after  the  disappearance  of  the  party,  and  that 
the  onus  of  proving  the  death  of  the  party  at  any  particular  time  within 
the  seven  years,  or  that  he  survived  any  particular  time  within  that  pe- 
riod, lay  upon  the  person  who  claimed  a right  resting  upon  the  establish- 
ment of  either  of  these  facts. 

“In  that  case  it  appeared  that  one  Francis  Phene  had  died  in  January, 
1861,  having  by  his  will  bequeathed  the  residue  of  his  estate  to  his 
nephews  and  nieces  in  equal  shares.  Nicholas  Phene  Mill  was  one  of  his 
nephews,  and  the  share  to  which  he  would  have  been  entitled,  if  living, 
was  paid  into  Court,  because  it  was  uncertain  whether  he  survived  the 
testator.  In  1869  letters  of  administration  were  granted  to  his  brother, 
who  presented  a petition  for  the  payment  of  the  fund  to  him.  It  ap- 
peared in  evidence  that  he  left  his  parents’  home  in  England  and  went  to 
America  in  August,  1853,  and  was  last  heard  of  in  June,  1860.  Vice- 
Chancellor  James,  to  whom  the  petition  was  presented,  granted  its  prayer, 
holding  in  deference  to  three  previous  decisions  of  Vice-Chancellor  Kin- 
dersly  and  one  of  Vice-Chancellor  Malins,  that  the  deceased  must  lie  pre- 
sumed to  have  survived  the  testator,  upon  the  general  doctrine  that  con- 
tinuance of  life  once  shown  to  exist  is  presumed  until  death  is  proved,  or 
at  least  for  a reasonable  period  after  disappearance  ; but  as  he  dissented 
from  the  decisions,  he  directed  the  fund  to  be  retained  in  Court  until  the 
respondents  had  an  opportunity  to  bring  the  matter  before  the  Court  of 
Appeal. 

“ The  decision  of  Vice-Chancellor  Kindersly  proceeded  upon  the  pre- 
sumption of  the  continuance  of  life  for  a reasonable  period  after  the 
party  is  shown  to  have  been  in  existence  ; but  Vice-Chancellor  Malins 
extended  the  presumption  of  the  continuance  of  life  to  the  expiration  of 
the  seven  years.  In  re  Phene  Trusts  (Law  Rep..  4,  Eq.  Cases,  416)  the 
doctrine  held. by  these  judges  was  overruled,  and  if  the  opinion  of  the 
Court  of  Appeal  contains  a correct  exposition  of  the  law  of  England,  and 


-332 


we  are  bound  to  presume  that  it  does  in  the  absence  of  any  decision  of 
the  House  of  Lords  on  the  subject,  that  law  supports  the  position  of  the 
counsel  of  the  defendants  in  this  case,  that  the  onus  rests  on  the  plaintiff 
of  showing  that  John  E.  Montgomery,  who  disappeared  on  the  15th  of 
November,  1846,  and  of  whom  no  intelligence  has  since  been  received, 
was  alive  on  the  1st  day  of  December,  1846,  when  the  grant  of  the  Al- 
calde was  made. 

“ But  the  law  as  thus  declared  in  England  is  different  from  the  law 
which  obtains  in  this  country,  so  far  as  it  relates  to  the  presumption  of 
the  continuance  of  life.  Here,  as  in  England,  the  law  presumes  that  a 
person  who  has  not  been  heard  of  for  seven  years  is  dead,  but  here  the 
law,  differing  in  this  respect  from  the  law  of  England,  presumes  that  a 
party  once  shown  to  be  alive  continues  alive  until  his  death  is  proved,  or 
the  rule  of  law  applies  by  which  such  death  is  presumed  to  have  oc- 
curred, that  is,  at  the  end  of  seven  years.  And  this  presumption  of  life 
is  received,  in  the  absence  of  any  countervailing  testimony,  as  conclusive 
of  the  fact,  establishing  it  for  the  purposes  of  determining  the  rights  of 
parties  as  fully  as  the  most  positive  proof.  The  only  exception  to  the  op- 
eration of  this  presumption  is  when  it  conflicts  with  the  presumption  of 
innocence,  in  which  case  the  latter  prevails. 

“ This  rule  is  much  more  convenient  in  its  application,  and  works 
greater  justice  than  the  doctrine  which  obtains  in  England,  according  to 
the  decision  in  Phene  Trusts,  that  the  existence  of  life  at  any  particular 
time  w ithin  the  seven  years,  when  the  fact  becomes  material,  must  be 
affirmatively  proved.  In  numerous  cases  such  proof  can  never  he  made, 
and  property  must  often  remain  undistributed,  or  be  distributed  between 
the  contestants,  not  according  to  any  settled  principles,  but  according  as 
one  or  the  other  happens  to  be  the  moving  party  in  Court.  Take  this 
case  by  way  of  illustration  : A man  goes  to  sea  on  the  first  of  January, 
1860,  and  is  never  heard  of  again ; bis  father  makes  his  will  and  dies  on 
the  first  of  July  of  the  same  year,  leaving  to  him  a portion  of  his  prop- 
erty, and  the  residue  to  a distant  relative.  If  persons  claiming  under 
the  missing  man  apply  for  the  legacy  to  him,  they  must  fail,  for  they  can- 
not prove  that  he  survived  the  testator.  On  the  other  hand,  if  the  resid- 
uary legatee  applies  for  the  property  on  the  ground  that  the  legacy  to  the 
missing  man  has  lapsed,  he  must  fail,  for  he  cannot  prove  that  the  missing 
man  died  before  the  testator  ; and  the  proof  of  his  death  in  such  case  would 
be  essential  to  the  establishment  of  the  applicant’s  right. 

“ Nor  is  this  rule,  as  to  the  presumption  of  the  continuance  of  life  up 
to  the  end  of  the  seven  years,  justly  subject  to  the  criticism  of  counsel, 
that  it  renders  absurd  the  whole  basis  on  which  the  presumption  of  death 
rests.  There  must  be  some  period  when  the  presumption  of  the  contin- 
uance of  life  ceases  and  the  presumption  of  death  supervenes  ; and  as  in  all 
cases  where  the  existence  of  a presumption  arising  from  the  lapse  of  time 
is  limited  by  a fixed  period,  it  is  difficult  to  assign  any  valid  reason  w’hy 
one  presumption  should  cease  at  the  particular  time  designated,  rather’ 


than  at  some  other  period,  and  a different  presumption  arise,  except  that 
it  is  important  that  some  time  when  the  change  takes  place  should  be 
permanently  established. 

"It  would  be  difficult  to  assign  any  other  reason  than  this  for  the  pre- 
sumption, which  obtains  in  some  States,  that  a debt  is  paid,  upon  which 
no  action  has  been  brought,  after  the  lapse  of  six  years  ; and  that  it  is 
unpaid  up  to  the  last  hour  of  the  sixth  year.  The  presumption  of  pay- 
ment arising  from  the  lapse  of  time  without  action,  it  might  be  said  with 
equal  propriety,  as  in  the  present  case  with  respect  to  the  presumption 
of  life  to  the  end  of  the  seventh  year,  that  if  the  presumption  of  non-pay- 
ment extends  up  to  the  end  of  the  sixth  year,  it  renders  absurd  the  whole 
basis  upon  which  the  presumption  of  payment  rests.  So  it  would  be  diffi- 
cult to  give  any  sufficient  reason  for  admitting  in  evidence  a deed  thirty 
years  old  without  other  proof  of  its  execution  than  what  is  apparent  on 
its  face,  and  at  the  same  time  refusing  admission  to  a deed  except  upon 
full  proof  of  its  execution,  which  has  existed  thirty  years  less  one  day — 
except  that  it  is  important  that  the  period  should  be  fixed  on  which  the 
presumption  arises  which  supersedes  the  necessity  of  direct  proof. 

“ But  it  is  unnecessary  to  pursue  the  subject  further.  I am  of  opinion 
that  the  plaintiff  could  rely,  in  the  first  instance,  upon  the  presumption  of 
law  as  to  the  continuance  of  life  to.  establish  the  fact  that  John  E.  Mont- 
gomery was  alive  on  the  1st  day  of  December,  1840,  when  the  grant  of  the 
Alcalde  was  issued.  This  leaves  the  plaintiff  with  a prima  facie  case  for 
recovery. 

“ We  turn  now  to  the  consideration  of  the  affirmative  positions  of  the 
defendants.  They  contend  that  the  evidence  in  the  case  rebuts- the  pre- 
sumption of  the  continuance  of  life,  and  warrants  the  inference  that  the 
alleged  grantee  died  previous  to  the  1st  of  December,  1846,  and  that 
the  action  is  barred  by  the  statute  of  limitations. 

“ It  appears  from  the  evidence  that  about  the  middle  of  November, 
1846,  a launch  from  the  United  States  sloop-of-war  Warren,  a vessel  then 
lying  in  the  harbor  of  San  Francisco,  and,  with  the  Portsmouth , under 
the  command  of  Captain  Montgomery,  sailed  from  the  harbor  with  ten 
seamen  and  two  officers  for  Sutter’s  Fort  on  the  Sacramento  River. 
The  two  sons  of  Captain  Montgomery  wrere  on  the  launch — William  H. 
Montgomery,  a midshipman  and  the  Sailing  Master  on  the  sloop  Warren, 
had  command  of  it.  John  E.  Montgomery,  who  was  clerk  of  Captain 
Montgomery  on  board  the  Portsmouth,  accompanied  his  brother.  It  was 
understood  at  the  time  on  hoard  the  Warren  that  the  launch  was  sent 
with  money  to  pay  troops  of  the  United  States.  Sutter’s  Fort  is  distant 
from  the  harbor  of  San  Francisco  about  120  miles,  and  the  voyage  be- 
tween the  two  places  is  often  made  in  a single  day.  An  ordinary  voyage 
from  San  Francisco  to  the  Fort  and  back  would  not  occupy  over  four  or 
five  days.  The  launch  in  this  case  was  propelled  both  by  sails  and  by 
oars.  From  the  time  it  sailed  no  intelligence  has  ever  been  received  of 
it,  or  of  either  of  the  officers,  or  of  any  of  the  men  who  accompanied  it. 


384 


About  ten  days  after  its  departure  Capt.  Montgomery  became  uneasy  at 
its  absence  and  sent  out  several  boats  in  search  of  his  sons  and  the  men 
who  sailed  with  them,  and  these  boats  were  kept  on  the  search  for  about 
two  weeks,  but  no  trace  could  be  found  of  the  launch  or  men.  Of  their 
fate,  absolute  ignorance  has  existed  to  this  day,  now  nearly  a quarter  of 
a ceDtury  since  their  disappearance.  Captain  Montgomery  himself  left 
the  port  of  San  Francisco  with  the  Portsmouth  on  the  5th  or  6th  of  De- 
cember following. 

“ Now  it  appears  to  me  that  there  are  only  two  inferences  which  can 
be  drawn  from  these  facts,  when  considered  with  reference  to  the  charac- 
ter and  positions  of  the  men  and  officers:  One  is,  that  they  died  during 
the  period  within  which  they  should  have  returned  to  San  Francisco ; 
the  other  is  that  they  deserted  from  the  service.  The  latter  inference 
cannot  be  entertained  for  several  reasons : First,  desertion  is  the  highest, 
and  with  cowardice,  the  basest  of  offences  which  can  be  'committed  by 
men  in  the  naval  service;  it  has  never,  it  is  believed,  been  charged  upon 
a naval  officer  of  the  United  States.  It  can  never,  therefore,  be  accepted 
as  an  explanation  of  any  act  of  his,  except  upon  the  clearest  proof.  Sec- 
ond, if  the  case  had  been  one  only  of  desertion,  and  not  death,  it  .is  highly 
improbable  that  no  intelligence  should  have  been  received  of  any  of  the 
men  during  the  long  period  which  has  since  elapsed.  Besides,  with  re- 
spect to  the  sons  of  Captain  Montgomery,  the  natural  effect  of  relation- 
ship must  have  led  them  to  break  the  silence  of  years,  and  to  seek  com- 
munication with  their  father. 

“ The  theory  of  desertion  would  require  us  to  believe  that  officers  and 
men  conspired  to  commit  the  basest  of  crimes,  besides  larceny  of  the  pub- 
lic funds  in  their  custody,  and  that  for  nearly  a quarter  of  a century  they 
have  not  only  kept  to  themselves  the  secret  of  their  crime,  but  have  so 
secluded  themselves,  twelve  in  number,  from  observation  that  no  intelli- 
gence respecting  any  of  them  has  reached  the  public. 

“If  desertion  cannot  be  received  as  a reasonable  explanation  of  their 
conduct,  then  death  must  be  inferred.  Death  is  the  only  fact  which  rec- 
onciles their  conduct  with  the  presumption  of  innocence,  and  with  the 
ordinary  conduct  which  officers  and  men  of  the  navy  pursue  while  in  the 
public  service.  It  is  the  sole  fact  which  satisfactorily  explains,  according 
to  the  common  experience  and  knowledge  of  men,  which  are  proper 
grounds  for  judgment,  the  failure  of  the  officers  and  men  to  return  to 
San  Francisco,  and  the  absolute  silence  of  the  world  since  respecting 
them. 

“ My  mind  is  thus  led  irresistibly  from  the  evidence  to  the  conclusion, 
that  the  officers  and  crew  on  board  the  launch  perished  on  the  voyage  to 
Sacramento,  within  a few  days  after  their  departure  from  San  Francisco. 
They  probably  perished  in  the  bay  of  San  Pablo,  or  the  bay  of  Suisun. 
If  the  accident  which  occasioned  their  death  had  occurred  in  the  Sacra- 
mento River,  it  is  probable  that  some  of  the  men  would  have  succeeded, 
from  the  narrowness  of  the  stream,  in  reaching  the  shore;  and  probably 
some  trace  of  the  launch  would  have  been  discovered. 


335 


“ Finding,  as  I do,  that  John  E.  Montgomery  died  before  the  1st  of  De- 
cember, 1846,  the  conclusion  follows  that  the  grant  of  Alcalde  Bartlett, 
intended  for  him,  was  inoperative  to  pass  the  title, 

“ A grant  to  a person  deceased  is  void.  The  instrument  must  be  issued 
to  a person  in  being,  or  it  will  be  as  invalid  as  if  made  to  a fictitious  party. 
The  position  of  the  plaintiff’s  counsel  that,  if  the  grantee  were  dead  at  the 
date  of  the  grant,  his  heir-at-law  took  the  title,  is  not  tenable.  The  case  of 
Landes  vs.  Brant,*  cited  in  support  of  this  position  is  an  authority  against 
it.  In  that  ease  Clamorgan,  the  patentee,  had  died  in  1814,  and  the  patent 
issued  in  1845.  The  Supreme  Court  said,  that  according  to  the  common 
law  the  patent  wasvoid  for  want  of  a grantee,  but  that  the  defect  was  cured 
by  the  act  of  Congress  of  May  20th,  1836,  declaring  : ‘ That  in  all  cases 
where  patents  for  public  lands  have  been  or  may  hereafter  be  issued,  in 
pursuance  of  any  law  of  the  United  States  to  a person  who  had  died,  or 
who  shall  hereafter  die,  before  the  date  of  such  patent,  the  title  to  the 
land  designated  therein  shall  enure  to  and  become  vested  in  the  heirs,  de- 
visees, and  assigns  of  such  deceased  patentee,  as  if  the  patent  had  issued 
to  the  deceased  person  during  life.’  This  act,  of  course,  has  no  applica- 
tion to  grants  issued  by  Alcaldes  in  the  Pueblo  of  San  Francisco,  whose 
authority  never  extended  to  the  alienation  of  any  public  lands,  but  only 
to  lands  belonging  to  the  pueblo.” 

The  Judge,  also,  in  this  ease  considered  at  length  the 
effect  of  the  statute  of  limitations  upon  the  right  of  the 
plaintiff,  and  still  more  elaborately  upon  a subsequent  mo- 
tion for  a new  trial. 

The  judgment  entered  was  for  the  defendant. 


United  States  vs.  Flint. — United  States  vs.  Throckmor- 
ton.— United  States  vs.  Carpentier. 

When  California  was  acquired  hy  the  United  States  a 
very  large  portion  of  it,  particularly  that  portion  situated 
in  the  valleys,  which  was  fitted  for  agricultural  and  graz- 
ing purposes,  had  been  alienated  by  grants  of  the  former 
government  of  Mexico.  It  was  the  policy  of  that  govern- 
ment to  encourage  the  settlement  of  the  country,  and  for 
that  purpose  land  was  readily  granted  to  settlers,  in  large 
quantities,  upon  their  application.  By  the  treaty  of  cession 
with  Mexico  the  United  States  stipulated  for  the  protec- 


10  How.,  373. 


tion  of  all  rights  of  property  of  the  inhabitants  of  the 
ceded  country.  To  carry  out  this  stipulation  the  act  of 
Congress  of  March  3,  1851,  to  settle  private  land  claims  in 
California  was  passed.  The  long  and  tedious  proceedings 
which  the  holders  of  such  grants  were  required  by  it,  and 
subsequent  acts,  to  take, in  order  to  secure  a recognition  of 
their  claims  and  the  patent  of  the  United  States,  are  set 
forth  in  the  opinion  af  Judge  Field  which  is  given  below. 
It  occupied,  in  the  majority  of  cases,  several  years  of  labor, 
accompanied  in  the  meantime  with  anxiety  and  constant 
conflict  with  intruders  and  squatters.  When  such  patents 
were  finally  issued,  it  was  hoped  and  believed  that  peace 
and  quiet  were  secured  to  the  possessors  in  the  enjoyment 
of  the  land  patented,  but  this  proved  to  be  a delusion. 
The  land  plunderers  immediately  commenced  making  in- 
(liscriminate  charges  of  fraud,  perjury,  and  subornation  of 
perjury  against  the  patentees,  and  of  bribery  against  all 
or  most  of  the  officers  of  the  government,  through  whose 
agency  the  patentees’  title  had  been  examined  and  estab- 
lished. In  some  instances  their  clamors  were  of  sufficient 
potency  to  obtain  from  tbe  Attorney-General  of  the  United 
States  authority  to  use  his  name  in  proceedings  by  the 
government  for  the  cancellation  of  the  patents  as  having 
been  fraudulently  obtained.  Tbe  most  notable  of  these 
cases  were  those  designated  at  the  head  of  this  chapter. 
They  were  heard  in  the  Circuit  Court  by  Judges  Field, 
Sawyer,  and  Hoffman,  in  February,  1876.  Elaborate 
opinions  were  given  in  them  by  Judges  Field  and  Hoff- 
man, the  former  confining  himself  especially  to  the  case 
of  the  United  States  vs.  Flint,  and  the  latter  to  that  of  the 
United  States  vs.  Carpentier.  The  following  is  the  opinion 
of  Judge  Field  : 

“ The  case  of  the  United  States  vs.  Flint  is  a suit  in  equity,  the  main 
object  of  which  is  to  set  aside  and  annul  the  decree  of  the  District  Court 
of  the  Southern  District  of  California,  confirming  the  claim  of  Teodocio 
Yorba  to  the  Rancho  Lomas  de  Santiago,  situated  in  the  county  of  Los 
Angeles,  in  this  State,  and  to  recall  and  cancel  the  patent  issued  thereon 
by  the  United  States.  It  is  brought  by  the  District  Attorney  for  Cali- 
fornia, and  purports  to  be  on  behalf  of  the  United  States 


337 

" It  appears,  from  the  allegations  of  the  hill,  and  the  record  to  which 
the  hill  refers,  that,  in  October,  1852,  the  claimant — who  has  since  de- 
ceased— -presented  to  the  Board  of  Land  Commissioners,  created  under 
the  act  of  Congress  of  March  3d,  1851,  to  ascertain  and  settle  private 
land  claims  in  California,  a petition  setting  forth  his  claim  to  the  rancho 
in  question,  and  stating  that  the  same  was  granted  to  him  in  May,  1846, 
by  the  Governor  of  the  Department ; that  the  grant  had  been  approved 
by  the  Departmental  Assembly ; that  juridical  possession  of  the  land  had 
been  delivered  to  him  by  competent  authority,  and  its  boundaries  de- 
fined, and  that  he  was  then,  and  had  been  previously  in  its  peaceable  oc- 
cupation. 

“ With  the  petition,  and  as  part  thereof,  the  claimant  presented  copies 
of  the  grant  and  act  of  juridical  possession,  accompanied  by  a transla- 
tion of  the  same,  and  prayed  that  the  grant  be  adjudged  valid,  and  con- 
firmed to  him.  The  Board  of  Commissioners  considered  the  claim  thus 
presented,  and  took  the  depositions  of  several  witnesses  in  support  of  it, 
and  in  August,  1854,  rendered  a decree  adjudging  it  to  be  valid,  and  di- 
recting its  confirmation.  In  November,  1855,  a petition  was  filed  on  be- 
half of  the  United  States,  in  the  District  Court  for  the  Southern  District 
of  California,  for  a review  of  the  decision,  alleging  that  the  claim  con- 
firmed was  invalid,  and  the  decision  of  the  Commissioners  erroneous; 
that  the  allegations  of  the  claimant  in  his  petition  were  unsupported  by 
sufficient  proof;  and  denying  that  he  had  any  right  or  title  to  the  land 
confirmed,  or  to  any  part  of  it.  The  claimant  answered  this  petition, 
joining  issue  upon  its  allegations,  and  the  Court  took  jurisdiction  of  the 
case,  heard  it  anew,  and,  in  December,  1856,  rendered  its  decree,  affirm- 
ing the  decision  of  the  Commissioners,  and  re-adjudged  the  claim  to  be 
valid.  An  appeal  from  this  decree  to  the  Supreme  Court  of  the  United 
States  was  allowed,  but  the  Attorney-General,  after  some  months’  delib- 
eration, gave  notice  that  the  appeal  would  not  be  prosecuted,  and  there- 
upon the  District  Court,  upon  the  consent  of  the  District  Attorney,  va- 
cated the  order  allowing  the  appeal,  and  gave  the  claimant  leave  to  pro- 
ceed upon  its  decree  as  a final  decree  in  the  case.  A survey  of  the  land 
was  subsequently  made  under  the  direction  of  the  Surveyor-General  of 
the  United  States  for  California,  and  approved  by  that  officer,  and  in  Feb- 
ruary, 1868,  a patent  was  issued  to  the  claimant. 

“It  thus  appears  that,  after  a contest  for  nearly  sixteen  years  before 
officers  and  tribunals  of  the  United  States,  the  claimant  obtained  a pat- 
ent from  the  government — an  instrument  designed  to  give  to  its  holder 
security  and  protection  in  the  enjoyment  of  the  property  covered  by  its 
terms.  All  the  defendants  acquired  their  interest  in  the  land  after  the 
decree  of  confirmation,  and  two  of  them  after  the  patent  was  issued. 

“ Nineteen  yeats  after  the  final  decree  was  thus  rendered,  and  eight 
years  after  the  patent  was  issued,  the  present  bill  was  filed.  And  as 
grounds  for  setting  aside  and  annulling  the  decree,  and  recalling  and  can- 
celling the  patent,  the  District  Attorney  alleges,  upon  information  and 


338 

belief:  1st.  That  the  grant  and  act  of  juridical  possession  were  made 
subsequent  to  the  acquisition  of  the  country  in  1840,  and  were  fraudu- 
lently antedated,  and  that  this  appears  on  the  face  of  the  original  papers 
on  file  in  the  Spanish  archives  in  the  custody  of  the  Surveyor-General 
of  the  United  States  ; that  the  claimant  fraudulently  omitted  to  exhibit 
a complete  record  of  the  proceedings  and  only  presented  extracts  from 
them,  and  by  this  suppression  the  Law  Agent  of  the  United  States  was 
misled,  the  United  States  deprived  of  all  opportunity  to  contest  the  con- 
firmation, and  the  Land  Commission  and  Court  were  deceived  into  a 
confirmation  of  the  claim  ; and  2d.  That  previous  to  the  issue  of  the 
alleged  grant,  and  as  early  as  1840,  the  claimant  had  obtained  from  the 
Mexican  nation  a grant  of  eleven  leagues,  situated  in  the  counties  of 
Sacramento,  San  Joaquin,  and  Amador,  which  was  subsequently  con- 
firmed by  the  Supreme  Court  of  the  United  States  ; that,  by  the  laws  of 
Mexico,  a grant  for  more  than  eleven  leagues  could  not  be  made  to  the 
same  person,  and  that  the  claimant  was,  therefore,  disqualified  from  re- 
ceiving any  other  grant,  and  that  the  existence  of  this  prior  grant-  was 
fraudulently  concealed  from  the  Law  Agent  of  the  United  States,  the 
Land  Commission,  and  the  District  Court. 

“The  District  Attorney  also  alleges  in  the  bill,  upon  information  and 
belief,  that  the  approved  survey  is  not  in  conformity  with  the  boundaries 
given  in  the  diseno,  or  map  accompanying  the  grant  and  the  act  of  jurid- 
ical possession,  but  embraces  a much  greater  quantity,  and  was  made  upon 
the  fraudulent  instigation  and  procurement  of  three  of  the  defendants. 
The  District  Attorney  therefore  prays  that,  in  case  he  fail  to  obtain  the 
annulment  of  the  decree,  and  the  recall  and  cancellation  of  the  patent, 
the  boundaries  of  the  tract  confirmed  may  be  re-established  and  fixed  in 
accordance  with  the  views  stated  by  him  as  to  the  location  intended  by 
the  grant  and  act  of  juridical  possession. 

“ The  first  inquiry,  which  naturally  arises  upon  the  perusal  of  this  bill, 
is  as  to  what  jurisdiction  this  Court-  has  to  interfere  with  and  review  the 
determinations  of  the  Land  Commission  andDistrict  Court  upon  the  validity 
of  claims  to  land  derived  from  Mexican  or  Spanish  authorities,  and  of  the 
Land  Department-  in  approving  the  surveys  of  the  claims  confirmed.  The 
questions  submitted  to  the  Commission  and  the  District  Court  were  not 
within  the  ordinary  cognizance  of  a Court  of  Law,  or  a Court  of  Equity. 
They  related  to  the  obligations  devolving  upon  our  government  from  the 
concessions  of  the  former  government- to  its  inhabitants.  How  far  these 
concessions  should  be  respected  and  bow  far  enforced  were  the  matters  to 
be  considered ; and  in  their  determination  the  tribunals  were  to  be  gov- 
erned by  the  stipulations  of  the  treaty,  the  law  of  nations,  the  laws, 
usage,  and  customs  of  the  former  government,  the  principles  of  equity 
and  the  decisions  of  the  Supreme  Court,  so  far  as  they  were  applicable. 

“ By  the  transfer  of  California  from  Mexico  to  the  United  States,  the 
rights  of  private  property  of  the  inhabitants  were  not  affected.  They 
remained  as  under  the  former  government.  The  public  property  of  Mex- 


339 


ico  and  sovereignty  over  the  country  alone  passed  to  the  United  States. 
This  was  in  accordance  with  the  rule  of  public  law,  which  is  recognized 
by  all  civilized  nations,  when  territory  is  ceded  by  one  State  to  another. 
The  obligation,  therefore,  to  protect  private  rights  of  property  devolved 
upon  the  United  States  without  any  formal  declaration  to  that  effect. 
But,  in  recognition  of  this  obligation,  Mexico  obtained  from  the  United 
States,  in  the  treaty  of  cession,  an  express  stipulation  for  such  protection. 
And  the  term  property,  as  applied  to  lands  and  as  used  in  the  treaty, 
comprehends  every  species  of  title,  perfect  or  imperfect;  ‘it  embraces,’ 
says  Chief  Justice  Marshall,  ‘ those  rights  which  are  executory  as  well  as 
those  which  are  executed.’  The  United  States,  therefore,  took  California 
bound  by  the  established  principles  of  public  law,  and  by  express  stipu- 
lation of  the  treaty,  to  protect  all  private  rights  of  property  of  the  in- 
habitants. The  obligation  rested  for  its  fulfillment  in  the  good  faith  of 
the  government,  and  required  legislative  action.  It  could,  therefore,  only 
be  discharged  in  such  manner,  and  at  such  times  and  upon  such  condi- 
tions, as  Congress  might  in  its  discretion  direct.  In  its  discharge,  such 
action  was  required  as  would  enable  the  inhabitants  to  assert  and  maintain 
theirrights  to  their  property  in  the  Courts  of  the  country  as  fully  and  abso- 
lutely as  though  their  titles  were  derived  directly  from  the  United  States. 
Where  the  titles  were  imperfect,  and  such  was  the  condition  of  nearly  all 
the  titles  held  in  the  country,  further  action,  by  way  of  confirmation  or 
release  from  the  new  government,  was  essential.  With  respect  to  all  such 
titles,  and  indeed,  with  respect  to  all  matters  dependent  upon  executory 
engagements  of  the  government,  the  ordinary  Courts  of  the  United  States, 
whether  of  Law  or  Equity,  were  entirely  powerless;  they  were  without 
jurisdiction,  and  utterly  incompetent  to  deal  with  them. 

‘‘By  the  act  of  March  3d,  1851,  the  legislative  department  prescribed 
the  mode  in  which  the  provisions  of  the  treaty  should  be  carried  out,  and 
the  obligations  of  the  government  to  the  former  inhabitants  discharged, 
so  far  as  their  rights  respected  the  territory  acquired  ; and  thus  provided 
the  means  of  separating  their  property  from  the  public  domain.  That  act 
created  a Commission  of  three  persons,  to  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  for  the  express  pur- 
pose of  ascertaining  and  settling  private  land  claims  in  the  State.  It 
gave  a secretary  to  the  Commission,  skilled  in  the  Spanish  and  English 
languages,  to  act  as  interpreter  and  to  keep  a record  of  its  proceedings. 
It  provided  an  agent,  learned  in  the  law  and  skilled  in  those  languages, 
to  superintend  the  interests  of  the  United  States,  and  it  was  made  his 
duty  to  attend  the  meetings  of  the  Commissioners,  to  collect  testimony 
on  behalf  the  United  States,  and  to  be  present  on  all  occasions  when 
the  claimant,  in  any  case,  took  depositions.  To  the  Commission,  every 
person  claiming  lands  in  California,  by  virtue  of  any  right  or  title  de- 
rived from  the  Spanish  or  Mexican  government,  was  required,  on  pain 
of  forfeiting  his  land,  to  present  his  claim,  together  with  the  documentary 
evidence  and  testimony  upon  which  he  relied  in  its  support.  The  Com- 

23 


840 


missioners  while  sitting  as  a board,  and  at  their  chambers,  were  author- 
ized to  administer  oaths  and  take  depositions  in  any  case  pending  before 
them.  The  testimony  was  to  be  reduced  to  writing,  and  recorded  in 
books  provided  for  that  purpose.  The  Commissioners  were  obliged  to 
hear  every  case  and  decide  upon  the  validity  of  the  claim,  and,  within 
thirty  days  after  their  decision,  to  certify  the  same,  with  the  reasons  on 
which  it  was  founded,  to  the  District  Attorney  of  the  district.  The  act 
provided  also  for  a review  of  the  decision  of  the  Commissioners,  upon  pe- 
tition of  the  claimant  or  the  District  Attorney,  setting  forth  the  grounds 
upon  which  the  validity  or  invalidity  of  the  claim  was  asserted.  To  the 
petition  an  answer  was  required  from  the  contestant,  whether  claimant  or 
the  United  States.  Subsequently,  in  August,  1852,  the  act  was  changed 
in  this  particular,  and  when  a decision  was  rendered  by  the  Commission- 
ers they  were  required  to  prepare  two  certified  transcripts  of  their  pro- 
ceedings and  decision,  and  of  the  papers  and  evidence  upon  which  the 
same  were  founded — one  of  which  was  to  be  transmitted  to  the  Attor- 
ney-General, and  the  other  filed  with  the  clerk  of  the  District  Court,  and 
this  filing  operated  as  an  appeal  on  behalf  of  the  party  against  whom  the 
decision  was  rendered.  In  case  the  decision  was  against  the  United 
States,  the  Attorney-General,  within  six  months  after  receiving  the  tran- 
script, was  required  to  cause  a notice  to  be  filed  with  the  clerk  that  the 
appeal  would  be  prosecuted,  or  it  was  to  be  regarded  as  dismissed. 

“ Upon  the  review  by  the  District  Court  upon  the  petition  or  appeal, 
not  merely  the  evidence  before  the  Commissioners  was  considered,  but 
further  evidence  could  be  taken  by  either  the  claimant  or  the  govern- 
ment; so  that,  in  fact,  the  whole  matter  was  heard  anew,  as  upon  an  orig- 
inal proceeding.  From  its  decision,  an  appeal  lay  to  the  Supreme  Court 
of  the  United  States. 

“As  thus  seen,  the  most  ample  powers  were  vested  in  the  Commission- 
ers and  the  District  Court  to  inquire  into  the  merits  of  every  claim  ; and 
they  were  not  restricted  in  their  deliberations  by  any  narrow  rules  of 
procedure  or  technical  rules  of  evidence,  but  could  take  into  considera- 
tion the  principles  of  public  law  and  of  equity  in  their  broadest  sense. 
When  the  claim  was  finally  confirmed,  the  act  provided  for  its  survey 
and  location,  and  the  issue  of  a patent  to  the  claimant.  The  decrees  and 
the  patents  were  intended  to  be  final  and  conclusive  of  the  rights  of  the 
parties,  as  between  them  and  the  jJnited  States.  The  act,  in  declaring 
that  they  should  only  be  conclusive  between  the  United  States  and  the 
claimants,  did,  in  fact,  declare  that  as  between  them  they  should  have 
that  character. 

“ Here,  then,  we  have  a special  tribunal,  established  for  the  express 
purpose  of  ascertaining  and  passing  upon  private  claims  to  land  derived 
from  Spanish  or  Mexican  authorities,  clothed  with  ample  powers  to  in- 
vestigate the  subject  and  determine  the  validity  of  every  claim,  and  the 
propriety  of  its  recognition  by  the  government,  capable  as  any  Court 
could  possibly  be  made  of  detecting  frauds  connected  with  the  claim, 


341 

and  whose  first  inquiry  in  every  ease  was  necessarily  as  to  the  authenti- 
city and  genuineness  of  the  documents  upon  which  the  claim  was  founded. 

•'  We  have  a special  jurisdiction  of  a like  nature  in  the  District  Court 
to  review  the  decision  made  by  the  Commission,  and  investigate  anew 
the  claim.  We  have  principles  prescribed  for  the  government  of  both 
Commission  and  Court  in  these  cases,  and  of  the  Supreme  Court,  upon 
appeal  from  their  decisions,  not  applicable  in  ordinary  proceedings,  either 
at  law  or  in  equity.  And,  as  slready  stated,  every  person  claiming  land 
in  the  State  was  required  to  present  his  claim  for  investigation.  The 
onerous  duty  thus  thrown  upon  him  was  relieved  of  its  oppressive  char- 
acter by  the  accompanying  assurance,  that,  when  his  claim  was  adjudged 
valid,  the  adjudication  should  be  final  and  conclusive. 

‘‘On  principle,  such  adjudications  cannot  be  reviewed  or  defeated  by  a 
Court  of  Equity,  upon  any  suggestion  that  the  Commissioners  and  Court 
misapprehended  the  law,  or  were  mistaken  as  to  the  evidence  before 
them,  even  if  that  consisted  of  fabricated  papers  supported  by  perjured 
testimony.  The  very  questions  presented  by  the  present  bill  were  neces- 
sarily involved  in  the  proceeding  before  the  Commissioners  and  the  Dis- 
trict Court,  and  the  credibility  of  the  testimony  ottered  was  a matter 
considered  by  them.  Whether  the  grant  produced  J>y  the  claimant  was 
genuine,  and  the  claim  resting  thereon  was  entitled  to  confirmation,  were 
the  points  at  issue.  The  bill  avers  that  the  alleged  grant  was  not  genu- 
ine because  it  was  ante-dated.  But  the  genuineness  of  the  document 
was  the  matter  sub  judice,  and  could  not  hava  been  established,  and  the 
claim  based  upon  it  affirmed,  except  by  evidence  satisfactory  to  the  Com- 
mission and  Court,  that  it  was  made  at  the  time  stated. 

“ It  is  to  no  purpose  in  such  case  to  invoke  the  doctrine  that  fraud  viti- 
ates all  transactions,  even  the  most  solemn,  and  that  a Court  of  Equity 
will  set  aside  or  enjoin  the  enforcement  of  the  most  formal  judgments 
when  obtained  by  fraud.  The  doctrine  of  equity  in  this  respect  is  not 
questioned;  it  is  a doctrine  of  the  highest  value  in  the  administration  of 
justice,  and  its  assertion  in  proper  cases  is  essential  to  any  remedial  sys- 
tem adequate  to  the  necessities  of  society.  But  it  cannot  be  invoked  to 
reopen  a case  in  which  the  same  matter  has  been  once  tried,  or  so  put  in 
issue  between  the  parties  that  it  might  have  been  tried.  The  judgment 
rendered  in  such  a case  is  itself  the  highest  evidence  that  the  alleged 
fraud  did  not  exist,  and  estops  the  parties  from  asserting  the  contrary. 
It  is  afterwards  mere  assumption  to  say  that  the  fraud  was  perpetrated. 
The  judgment  has  settled  the  matter  otherwise  ; it  is  res  judicata. 

“ The  frauds  for  which  Courts  of  Equity  will  interfere  to  set  aside  or 
stay  the  enforcement  of  a judgment  of  a Court  having  jurisdiction  of  the 
subject-matter  and  the  parties,  must  consist  of  extrinsic  collateral  acts 
not  involved  in  the  consideration  of  the  merits.  They  must  be  acts  by 
which  the  successful  party  has  prevented  his  adversary  from  presenting 
the  merits  of  his  case,  or  by  which  the  jurisdiction  of  the  Court  has  been 
imposed  upon. 


342 


“All  litigants  are  equally  entitled  to  justice  from  tlie  tribunals  of  the 
country;  they  have  equally  a right  to  an  impartial  judge;  they  can 
claim  equal  opportunities  of  producing  their  testimony  and  presenting 
their  case,  and  they  can  equally  have  the  advocacy  of  counsel.  When- 
ever one  party  by  any  contrivance  prevents  his  adversary  from  having 
this  equality  with  him  before  the  Courts,  he  commits  a fraud  upon  pub- 
lic justice,  which,  resulting  in  private  injury,  may  be  the  ground  of  eq- 
uitable relief  against  the  judgment  recovered.  Thus  if,  through  his  in- 
strumentality, the  witnesses  of  his  adversary  be  forcibly  detained  from 
the  Court,  or  bribed  to  disobey  its  subpcena,  or  the  testimony  of  his  ad- 
versary be  secreted  or  purloined,  or  if  the  citation  to  him  be  given  under 
such  circumstances  as  to  defeat  its  purpose,  a fraud  is  committed,  for 
which  relief  will  be  granted  by  a Court  of  Equity,  if  it  produce  injury  to 
the  innocent  party.  Any  conduct  of  the  kind  mentioned  would  tend  to 
prevent  a fair  trial  on  the  merits,  and  thus  to  deprive  the  innocent  party 
of  his  rights.  So,  if  a judge  sit  when  disqualified  from  interest  or  con- 
sanguinity; if  the  litigation  be  collusive;  if  the  parties  be  fictitious;  if 
real  parties  affected  are  falsely  stated  to  be  before  the  Court,  the  judg- 
ment recovered  may  be  set  aside,  or  its  enforcement  restrained,  for  in  all 
these  cases  there  would  be  the  want  of  the  judicial  impartiality  or  the 
actual  litigation  which  is  essential  to  a valid  judicial  determination.  To 
every  such  case  the  words  of  the  jurist  would  be  applicable  : Fcibula  non 
judicium , hoc  est ; in  scena,  non  in  foro,  res  agitur. 

“ The  credibility  of  testimony  given  in  a case,  bearing  upon  the  issue, 
is  not  an  extrinsic  collateral  act,  but  is  a matter  involved  in  the  consid- 
eration of  the  merits  ; and  the  introduction  of  false  testimony,  known 
or  shown  to  be  so,  does  not  affect  the  validity  of  the  judgment  rendered. 
In  every  litigated  case  where  the  interests  involved  are  large,  there  is 
generally  conflicting  evidence.  Witnesses  looking  at  the  same  trans- 
action from  different  stand-poiuts,  give  different  accounts  of  it.  The 
statements  of  some  are  unconsciously  affected  by  their  wishes,  hopes, 
or  prejudices.  Some,  from  defective  recollection,  will  blend  what  they 
themselves  saw  or  heard  with  what  they  have  received  from  the  nar- 
ration of  others.  Uncertainty  as  to  the  truth  iu  a contested  case  will 
thus  arise  from  the  imperfection  of  human  testimony.  In  addition  to 
this  source  of  uncertainty  may  be  added  the  possibility  of  the  perjury  of 
witnesses,  and  the  fabrication  of  documents.  The  cupidity  of  some  and 
the  corruption  of  others  may  lead  to  the  use  of  these  culpable  means  of 
gaining  a cause.  But  every  litigant  enters  upon  the  trial  of  a cause, 
knowing  not  merely  the  uncertainty  of  human  testimony  when  honestly 
given,  but  that,  if  he  has  an  unscrupulous  antagonist,  he  may  have  to 
encounter  frauds  of  this  character.  He  takes  the  chances  of  establish- 
ing his  case  by  opposing  testimony,  and  by  subjecting  his  opponent’s 
witnesses  to  the  scrutiny  of  a searching  cross-examination.  The  case  is 
not  the  less  tried  on  its  merits,  and  the  judgment  rendered  is  none  the 
less  conclusive,  by  reason  of  the  false  testimony  produced,  Thus,  if  an 


343 


action  be  brought  upon  a promissory  note,  and  issue  be  joined  on  its  ex- 
ecution, and  judgment  go  for  the  plaintiff,  and  there  is  no  appeal,  or  if 
an  appeal  be  taken,  and  the  judgment  be  affirmed,  the  judgment  is  con- 
clusive between  the  parties,  although,  in  fact,  the  note  may  have  been 
forged  and  the  witnesses  who  proved  its  execution  may  have  committed 
perjury  in  their  testimony.  The  rules  of  evidence,  the  cross-examina- 
tion of  witnesses,  and  the  fear  of  criminal  prosecution  with  the  produc- 
tion of  counter  testimony,  constitute  the  only  security  afforded  by  law 
to  litigants  in  such  cases.  A Court  of  Equity  could  not  afterwards  in- 
terfere upon  an  allegation  of  the  forgery  and  false  testimony,  for  that 
would  be  to  reopen  the  case  to  a trial  upon  the  execution  of  the  note, 
which  had  already  been  sub  judice,  and  passed  into  judgment. 

“These  views  are  in  consonance  with  the  adjudged  cases.  We  have 
looked  in  vain  through  all  those  cited  by  the  learned  associate  counsel  in 
the  Throckmorton  Case  for  anything  infringing  upon  them.  In  the 
Duchess  of  Kingston’s  Case  the  sentence  of  the  Spiritual  Court  was  held 
to  be  fraudulent  and  void,  because  obtained  by  collusion  of  the  parties. 
And,  in  giving  the  opinion  of  the  judges  to  the  House  of  Lords,  Chief 
Justice  De  Grey  observed  that,  although  a judgment  was  conclusive 
evidence  upon  the  point  involved,  and  could  not  be  impeached  from 
within,  yet,  like  all  other  acts  of  the  highest  judicial  authority,  could  be 
impeached  from  without,  and  that  fraud  was  an  extrinsic  collateral  act 
which  vitiated  the  most  solemn  proceedings  of  Courts  of  Justice. 

“In  the  Shedden  Case  (1  Macqueen,  535)  the  question  was  whether  a 
judgment  of  the  Court  of  Sessions  of  Scotland  against  the  legitimacy  of 
the  plaintiff,  affirmed  by  the  House  of  Lords,  could  be  attacked  in  an- 
other suit  in  the  inferior  Court,  and  treated  as  a nullity  for  collusive  sup- 
pression of  proof  which  wTould  have  established  his  parents’  marriage. 
The  House  of  Lords  held  that  the  judgment  could  be  thus  attacked,  but 
that  the  allegations  of  fraud  and  collusion  in  the  case  were  not  suffi- 
ciently specific,  pointed,  and  relevant  to  be  admitted  to  proof.  Opinions 
in  the  case  were  given  by  the  Chancellor  and  two  of  the  Law  Lords, 
Brougham  and  St.  Leonards.  The  judgment  of  the  House  of  Lords,  said 
Brougham,  was  to  be  ‘ dealt  with  in  the  inferior  Court  before  which  its 
merits  were  brought ; that  is  to  say,  not  the  merits  of  the  judgment,  but 
the  merits  of  the  parties  who  had  so  fraudulently  obtained  it — the  ques- 
tion being,  wras  it  a real  judgment  or  not  ? For  that  is  the  only  question  in 
such  cases,  and  that  is  the  question  in  this  case.’ 

“ In  Fermor’s  Case  (2  Coke,  77)  the  tenant  continued  to  pay  rent  to  his 
landlord  after  he  had  levied  a fine  with  proclamation  to  bar  the  inheri- 
tance, and  thus  kept  the  latter  in  ignorance  of  that  proceeding.  The  ten- 
ant attempting,  after  the  expiration  of  the  lease,  to  hold  the  property  on 
the  ground  that  the  right  of  the  landlord  was  barred  by  the  lapse  of  time 
allowed  by  statute  to  make  an  entry  or  tiring  his  action  after  the  fine, 
the  Court,  upon  a bill  filed  for  relief,  held  that  he  was  not  barred  by  rea- 
son of  the  deception  practiced  upon  him.  The  payment  of  the  rent  was 


344 


in  i'uct  ii  declaration  by  the  tenant,  that  his  relation  to  the  landlord  had 
not  changed,  and  operated  as  a fraud  preventing  the  latter  from  asserting 
his  rights. 

“Great  stress  is  placed  by  the  learned  associate  counsel  upon  these  last 
two  cases,  but  it  is  evident,  from  the  statement  we  have  made,  that  the 
fraud  alleged  in  both  cases  was  an  extrinsic  collateral  act  which  pre- 
vented the  complaining  party,  in  one  instance,  from  having  the  merits  of 
his  case  considered,  and  in  the  other  instance,  from  talcing  proceedings  for 
his  protection.  So  in  all  the  other  cases,  extrinsic  collateral  acts  of  fraud 
will  be  found  to  constitute  the  grounds  upon  which  the  Court  has  acted. 
And  on  principle  it  must  be  so,  for  if  the  merits  of  a case  could  be  a sec- 
ond time  examined  by  a new  suit,  upon  a suggestion  of  false  testimony, 
documentary  or  oral,  in  the  first  case,  there  would  be  no  end  to  litigation. 
The  greater  the  interests  involved  in  a suit,  the  severer  generally  the  con- 
tention ; and  in  the  majority  of  such  cases  the  recovery  of  judgment, 
would  be  the  occasion  of  a new  suit  to  vacate  it,  or  restrain  its  enforce- 
ment. If  the  present  bill  could  be  sustained  upon  the  grounds  alleged, 
and  we  should  set  aside  the  decree  of  the  District  Court,  a new  bill  might 
years  hence  be  filed  to  annul  our  judgment  and  reinstate  the  original  de- 
cree, on  the  same  grounds  urged  in  this  case,  that  fabricated  papers  and 
false  testimony  had  been  used  before  us,  which  eluded  the  scrutiny  of  the 
counsel  and  escaped  our  detection.  Of  course,  under  such  a system  of 
procedure,  the  settlement  of  land  titles  in  this  State  would  be  postponed 
indefinitely,  and  the  industries  and  improvements,  which  require  for  their 
growth  the  assured  possession  of  land,  would  be  greatly  paralyzed. 

“ For  the  reasons  stated,  we  are  of  opinion  that  there  is  no  ground  of 
fraud  presented  by  the  bill  for  the  interference  of  a Court  of  Equity  with 
the  decree  of  confirmation  rendered  by  the  District  Court.  It  is  upon 
that  ground  alone  that  the  bill  proceeds.  It  is  not  a bill  of  review  for 
new  matter,  discovered  since  the  decree.  A bill  of  that  character  can 
only  be  filed  by  leave  of  the  Court ; and  that  cannot  be  obtained  with- 
out a showing  that  the  new  matter  could  not  have  been  used  in  the  orig- 
inal cause,  and  could  not  previously  have  been  ascertained  by  reasonable 
diligence.  It  does  not  lie  where  the  decree  in  the  original  cause  was  ob- 
tained by  consent,  or  where  objections  to  the  decree  rendered  were  sub- 
sequently withdrawn  and  consent  was  given  to  its  execution.  And  it 
can  only  be  allowed  by  a court  possessing  the  power,  upon  a review  of 
the  case,  to  determine  the  rights  of  the  parties  to  the  property,  or  in  the 
matter  involved,  or,  at  least,  authorized  to  remit  the  case  to  a tribunal 
having  adequate  jurisdiction  for  that  purpose.  The  present  bill  was  not 
filed  upon  leave ; and  this  Court  possesses  no  power  to  determine  the 
right  of  the  claimant,  upon  any  review  of  the  case,  to  a confirmation  of  his 
claim,  and  the  only  tribunal  to  which  such  a determination  could  be  re- 
mitted has  long  since  ceased  to  exist. 

“ But  there  are  other  and  equally  potential  grounds  against  the  main- 
tenance of  the  present  suit.  The  Land  Commission  and  the  District 


345 


Court,  though  exercising  a special  jurisdiction,  were  invested  with  very 
large  and  extensive  powers.  They  were  not,  as  already  stated,  bound  in 
their  decisions  to  any  strict  rules  of  technical  law,  but  could  be  governed 
by  the  principles  of  equity  in  their  widest  scope.  The  result  of  their  in- 
quiries was  to  guide  the  government  in  the  discharge  of  its  treaty  obliga- 
tions. Considerations,  therefore,  which  could  not  be  presented  to  ordi- 
nary tribunals,  might  very  properly  be  regarded  by  them. 

“After  the  determination  of  the  Commissioners,  if  against  the  United 
States,  the  control  of  the  proceedings  was  placed  with  the  Attorney-Gen- 
eral. It  rested  with  him  exclusively  to  determine  whether  the  appeal 
from  the  Commissioners,  taken  by  filing  a copy  of  the  transcript  with 
the  clerk  of  the  District  Court,  should  be  prosecuted  or  dismissed.  So 
also  when  an  appeal  was  taken  from  the  decree  of  the  District  Court,  he 
could,  in  the  same  way,  direct  its  prosecution  or  dismissal.  Considera- 
tions of  policy,  as  well  as  of  strict  right,  might  be  deemed  by  him  suffi- 
cient to  control  his  action  in  this  respect.  In  coming  to  a determination 
on  the  subject,  he  was  not  restricted  to  an  examination  of  the  transcript 
transmitted  to  him  : he  could  look  into  the  archives  of  the  former  gov- 
ernment, the  reports  of  officers  previously  appointed  to  examine  into  the 
subject  of  the  land  titles  of  the  State,  the  records  of  the  Land  Department 
at  Washington,  and  any  correspondence  existing  between  Mexico  and  the 
United  States  respecting  the  title.  His  power  was  unlimited,  and  the 
propriety  or  legality  of  his  action  in  any  case  was  not  the  subject  of  re- 
view by  any  tribunal  whatever,  and  it  could  only  be  revoked  by  the  ap- 
pellate Court  upon  his  own  application. 

“ Iu  the  case  of  Yorba,  the  appeal  from  the  decree  of  confirmation, 
rendered  by  the  District  Court,  was  dismissed  upon  notice  of  the  Attor- 
ney-General that  the  appeal  would  not  be  prosecuted,  and  thereupon  the 
decree  became  final.  The  decree  was  thus  assented  to  by  the  highest 
legal  officer  of  the  government,  specially  charged  with  supervision  over 
the  subject.  The  validity  of  the  decree,  and  of  the  grant  upon  which 
the  claim  of  Yorba  was  founded,  was  thus  forever-put  at  rest.  From 
that  day  it  could  never  be  successfully  questioned  in  any  form  of  pro- 
cedure, or  by  any  tribunal  known  to  our  laws.  It  was  a closed  question 
for  all  time. 

“ But  this  is  not  all.  The  defendants  purchased  their  interests  after 
the  final  decree.  They  are  charged  in  the  bill,  it  is  true,  generally,  with 
notice  of  the  alleged  frauds  of  the  claimant ; but  how,  or  where,  or  in 
what  manner  they  had  notice,  is  not  averred.  The  vagueness  of  the  al- 
legation gives  it  only  the  weight  of  mere  clamor.  But,  assuming  that 
the  defendants  had  sufficient  notice  to  put  them  upon  inquiry,  they  had 
at  the  same  time  notice  of  the  decree,  which  was  an  adjudication — the 
highest  possible  evidence — that  the  alleged  frauds  had  no  actual  exist- 
ence, and  that  to  this  adjudication  the  government,  through  its  Attor- 
ney-General, had  consented.  They  had  a right,  therefore,  to  rely  im- 
plicitly upon  the  decree,  and  rest  in  confidence  upon  the  assurance  of  its 


finality,  given  by  the  only  officer  of  the  United  States  who  could  ques- 
tion it.  They  can,  therefore,  justly  insist  upon  protection  in  the  prop- 
erty purchased  ; and  no  Court  of  Equity,  under  the  circumstances,  would 
lend  its  aid  to  the  commission  of  so  great  a wrong  as  the  destruction  of 
their  title. 

“ Where  the  District  Attorney  of  this  district  obtains  authority  to  in- 
stitute in  the  name  of  the  United  States  a suit  for  that  purpose,  we  are 
not  informed.  There  is  no  law  of  Congress  which  requires  it  or  allows 
it;  and  we  have  sought  in  vain  for  the  power  of  the  Attorney-General 
to  direct  it.  That  officer  can,  it  is  true,  institute  or  direct  the  institution 
of  suits  for  the  revocation  or  cancellation  of  patents  of  lands  belonging 
to  the  United  States,  issued  upon  false  or  fraudulent  representations  to 
the  executive  officers  of  the  Land  Department,  or  upon  their  misconstruc- 
tion of  the  law.  He  is  the  legal  adviser  of  the  heads  of  the  executive 
departments,  and  if  they  are  fraudulently  imposed  upon,  or  have  mis- 
taken the  law,  he  can  take  the  necessary  legal  proceedings  to  recall  the 
results  of  their  action.  But  that  is  a very  different  matter  from  institut- 
ing or  directing  proceedings  to  vacate  or  recall  patents  founded  upon  de- 
crees of  a Commission  or  Court  exercising  a special  and  exclusive  juris- 
diction over  the  subjects  investigated,  where  the  law  declares  that  such 
decrees  shall  be  final  and  conclusive  between  the  parties,  and  to  which 
decrees  the  Attorney-General  in  office  at  that  time  assented.  Those  de- 
crees established  the  obligation  of  the  United  States  to  the  claimants  un- 
der the  treaty,  and  if  the  ’legislative  department,  which  authorized  the 
proceedings  before  the  Commission  and  Court,  be  satisfied  with  the  result, 
it  is  difficult  to  see  upon  what  pretence  the  Attorney-General  can  seek  to 
disturb  it.  If  the  Attorney-General,  by  virtue  of  bis  office,  possesses  any 
such  extraordinary  power,  as  claimed  in  the  case,  to  disregard  the  action 
of  his  predecessor,  and  to  renew  litigation  at  his  pleasure  respecting  the 
titles  of  a whole  people,  upon  a suggestion  that  false  testimony  may  have 
been  used  in  the  original  proceedings,  the  security  which  the  holders  of 
patents  from  the  government  issued  upon  such  decrees  have  hitherto  felt 
in  their  possessions,  is  unfounded  and  delusive.  We  must  have  further 
evidence  than  is  presented  to  us  before  we  can  admit  the  existence  of  a 
power  so  liable  to  abuse,  and  .so  dangerous  to  the  peaceof  the  community. 

“ But  if  we  admit  that  the  Attorney-General  is  authorized  to  direct  the 
institution  of  a suit  like  the  present,  in  the  name  of  the  United  States, 
and  that  the  District  Attorney  has  been  thus  directed,  his  power  in  this 
respect  must  be  exercised  in  subordination  to  those  rules  of  procedure 
and  those  principles  of  equity  which  govern  private  litigants  seeking  to 
avoid  a previous  judgment  against  them.  The  United  States,  by  virtue 
of  their  sovereign  character,  may  claim  exemption  from  legal  proceedings, 
but  when  they  enter  the  Courts  of  the  country  as  a litigant  they  waive 
this  exemption,  and  stand  on  the  same  footing  with  private  individuals. 
Unless  otherwise  provided  by  statute,  the  same  rules  as  to  the  admissi- 
bility of  evidence  are  then  applied  to  them  : the  same  strictness  as  to 


347 


motions  and  appeals  is  enforced;  the}7  must  move  for  a new  trial  or  take 
an  appeal  within  the  same  time  and  in  like  manner,  and  they  are  equally 
bound  to  act  upon  evidence  within  their  reach.  And,  when  they  go  into 
a Court  of  Equity,  they  must  equally  present  a case  by  allegation  and 
proof  entitling  them  to  equitable  relief. 

“Although,  on  grounds  of  wise  public  policy,  no  statute  of  limitations 
runs  against  the  United  States,  and  no  laches  in  bringing  a suit  can  be 
imputed  to  them,  yet  the  facility  with  which  the  truth  could  originally 
have  been  shown  by  them  if  different  from  the  finding  made ; the  changed 
condition  of  the  parties  and  of  the  property  from  lapse  of  time  ; the  dif- 
ficulty, from  this  cause,  of  meeting  objections  which  might,  perhaps,  at 
the  time  have  been  readily  explained  ; and  the  acquisition  of  interests  by 
third  parties  upon  faith  of  the  decree,  are  elements  which  will  always  be 
considered  by  the  Court  in  determining  whether  it  be  equitable  to  grant 
the  relief  prayed.  All  the  attendant  circumstances  of  each  case  will  be 
weighed,  that  no  wrong  be  done  to  the  citizen,  though  the  government 
he  the  suitor  against  him. 

“ The  hill  in  the  present  case  not  only  does  not  disclose,  as  already 
shown,  any  extrinsic  collateral  acts  of  fraud  constituting  grounds  for  eq- 
uitable relief,  hut  alleges  that  the  ante-dating  of  the  grant  and  act  of  ju- 
ridical possession,  which  form  the  gravamen  of  complaint,  appear  on  the 
face  of  the  original  documents  on  file  in  the  archives  in  the  custody  of 
the  Surveyor-General  of  the  United  States.  If  this  be  so,  the  Law  Agent 
should  have  shown  the  fact  by  the  production  of  the  originals.  He 
should  have  inspected  original  documents  in  all  cases  where  copies  alone 
were  offered  by  the  claimant,  whether  suspicions  were  excited  or  not  as 
to  their  genuineness.  The  law  of  Mexico  with  respect  to  the  alienation 
of  her  public  lands  was  well  known  at  the  time.  It  had  been  the  sub- 
ject of  reports  to  the  government  by  agents  employed  to  look  into  the 
grants  of  the  former  government,  and  of  consideration  and  comment  by 
the  Courts  in  numerous  instances.  That  law  pointed  out  the  proceedings 
required  for  the  acquisition  of  titles  of  land  from  Mexico,  and  showed 
that  a record  of  them  was  required  to  he  kept.  That  record  was  in  the 
possession  of  the  United  States,  and  should  have  been  examined  by  the 
Law  Agent  of  the  government  whenever  any  of  its  entries  or  documents 
were  the  foundation  of  a claim.  He  was  appointed  for  the  express  pur- 
pose of  looking  after  and  protecting  the  interests  of  the  United  States. 
The  allegation  that  the  claimant  was  guilty  of  a fraudulent  suppression 
in  not  producing  all  the  documents  in  the  archives  respecting  his  title  is 
puerile.  He  produced  all  that  was  necessary  to  present  his  claim,  and 
if  the  Law  Agent  was  not  satisfied  with  them,  he  should  have  made  his 
objection  at  the  time.  The  archives  were  not  in  an  ‘ unsearchable  con- 
dition,’ as  alleged,  until  1858,  but  even  if  they  had  been,  the  Law  Agent 
could  still  have  insisted  upon  the  production  of  the  originals  for  inspection. 

“After  the  archives  were  arranged  and  the  alleged  * unsearchable  con- 
dition ’ ceased,  nearly  eighteen  years  elapsed  before  the  present  bill  was 


U8 


filed,  and  no  excuse  is  offered  for  this  delay.  During  these  eighteen 
years,  which  constitute  a period  equivalent  almost  to  a century  in  other 
countries,  great  changes  in  the  condition  and  value  of  real  property  in 
the  State  have  occurred.  During  this  period,  the  original  claimant,  who 
might  perhaps  have  explained  the  alleged  alteration  of  dates,  has  de- 
ceased, and  third  parties  have  acquired  his  interests,  and,  it  is  said,  have 
made  valuable  and  expensive  improvements  upon  the  property.  Courts 
of  Equity  will  not  entertain  a suit  to  vacate  a decree,  even  in  case  of 
palpable  frauds,  when  there  has  been  unnecessary  delay  in  its  institu- 
tion, and  the  rights  of  third  parties,  as  in  this  case,  have  intervened  in 
reliance  upon  the  decree.  Considerations  of  public  policy  require  prompt 
action  in  such  cases,  and  if,  by  delay  in  acting,  innocent  parties  have  ac- 
quired interests,  the  Courts  will  turn  a deaf  ear  to  the  complaining 
party.  This  is  the  doctrine  of  equity,  irrespective  of  any  statute  of  lim- 
itations, and  irrespective  of  the  character  of  the  suitor.  It  is  essential 
that  this  doctrine  should  be  vigorously  upheld  for  the  repose  of  titles 
and  the  security  of  property. 

“ It  only  remains  to  notice  the  allegations  of  the  hill  with  respect  to  a 
previous  grant  of  eleven  leagues,  stated  to  have  been  obtained  by  the 
claimant  from  the  Mexican  nation  in  1840,  and  the  allegation  that  the 
approved  survey  of  the  claim  confirmed  was  not  in  accordance  with  the 
map  accompanying  the  grant,  and  the  act  of  juridical  possession. 

“ Whether  the  issue  of  a previous  grant  to  the  claimant  for  the  quantity 
designated  would  have  disqualified  him  from  receiving  a second  grant, 
was  a question  of  law,  to  be  determined  by  the  Commissioners  and  Dis- 
trict Court;  and  any  error  committed  in  its  determination  could  only  be 
corrected  on  appeal.  And  the  allegation  of  fraudulent  concealment  by 
the  claimant  of  the  existence  of  the  prior  grant  is  an  idle  one  in  the  face 
of  the  fact  that  the  Mexican  law,  of  which  the  Court  is  bound  to  take 
notice,  required  a record  of  every  grant  to  be  kept,  and  that  this  record, 
with  other  public  property,  passed  to  the  United  States  on  the  cession  of 
the  country.  If  there  was  any  such  grant  as  stated,  so  far  from  its  ex- 
istence being  concealed  by  the  claimant,  the  evidence  of  its  existence 
was  in  the  custody  of  the  government,  and  its  attention  had  been  spe- 
cially directed  to  the  document  by  agents  appointed  to  ascertain  what 
grants  had  been  made  by  the  former  government,  who  examined  the 
records  and  reported  a list  of  all  grants  found  among  them.  Allegations 
thus  in  conflict  with  the  public  records  and  public  history  of  the  country 
need  not  be  specially  controverted  any  more  than  allegations  at  variance 
with  the  settled  law.  A fraudulent  concealment  by  the  claimant  of  a 
public  record,  never  in  his  possession,  but  always  in  the  keeping  of  the 
government,  and  open  at  all  times  to  the  inspection  of  the  world,  was  a 
thing  impossible.  The  bill  might  with  as  much  propriety  have  alleged 
that  the  claimant  concealed  from  the  Court  one  of  the  public  statutes  of 
the  country. 

“ As  to  the  alleged  error  in  the  survey  of  the  claim,  it  need  only  be  ob- 
served that  the  whole  subject  of  surveys  upon  confirmed  grants,  except 


349 


as  provided  by  the  act  of  1860,  which  did  not  embrace  this  case,  was  un- 
der the  control  of  the  Land  Department,  and  was  not  subject  to  the  su- 
pervision of  the  Courts.  Whether  the  survey  conforms  to  the  claim  con- 
firmed or  varies  from  it,  is  a matter  with  which  the  Courts  have  nothing 
to  do : that  belongs  to  a department  whose  action  is  not  the  subject  of 
review  by  the  judiciary  in  any  case,  however  erroneous.  The  Courts  can 
only  examine  into  the  correctness  of  a survey  when,  in  a controversy  be- 
tween parties,  it  is  alleged  that  the  survey  made  infringes  upon  the  prior 
rights  of  one  of  them ; and  can  then  look  into  it  only  so  far  as  may  be 
necessary  to  protect  such  rights.  They  cannot  order  a new  survey  or 
change  that  already  made. 

“ It  follows,  from  the  views  we  have  expressed,  that  the  demurrer  to 
the  bill  must  be  sustained  ; and  as  no  amendment  would  reach  the  princi- 
pal objection,  namely,  that  the  alleged  frauds  are  not  such  extrinsic  col- 
lateral acts  as  would  justify  the  interference  of  equity  with  the  decree  of 
confirmation,  the  bill  must  be  dismissed. 

" The  principal  objection  to  the  bill  in  this  ease  applies  with  equal 
force  to  the  bills  in  the  Throckmorton  and  Carpentier  Cases,  and  the  de- 
murrers in  those  cases  will  also  be  sustained  and  the  bills  dismissed. 
The  allegation  in  the  Throckmorton  Case,  that  the  defendant  Howard 
had  notice  of  the  fabrication  of  the  papers  from  the  claimant,  given 
in  other  proceedings  before  the  Board,  and  other  allegations  imput- 
ing guilty  knowledge  to  him  and  to  the  other  defendants,  are  too 
vague  and  general  to  merit  consideration,  made  as  they  are  in  a bill 
not  verified  and  only  upon  information  and  belief.  The  District  Attor- 
ney should  at  least  have  stated  the  sources  of  his  information  and  the 
grounds  of  his  belief,  that  the  Court  might  see  that  the  former  was 
something  better  than  idle  rumor,  and  the  latter  something  more  than 
unfounded  credulity. 

‘‘  The  defendant,  Howard,  has  filed  an  answer  denying  under  oath, 
generally  and  specifically,  every  charge  against  him,  but  by  stipula- 
tion on  the  argument,  he  is  to  have  the  benefit  of  the  decision  upon  the 
demurrer. 

“ As  the  questions  presented  in  the  several  cases  are  of  vast  importance 
to  the  people  of  this  State,  the  District  Judge,  whose  great  experience  in 
the  examination  of  land  cases  gives  weight  to  his  view's,  will  read  a con- 
curring opinion  with  special  reference  to  the  Carpentier  Case. 

“ Our  judgment  is,  that  the  demurrers  be  sustained  in  the  three  cases, 
and  the  bills  be  dismissed  ; and  it  is  so  ordered.” 

Iii  this  opinion  Judges  Sawyer  and  Hoffman  concurred. 
The  cases  were  appealed  to  the  Supreme  Court  of  the 
United  States,  where  the  one  against  Throckmorton  was 
argued  and  confirmed. — (8  Otto,  61.)  The  disposition  of 
the  other  cases  followed  this  decision  and  were  confirmed 
without  contest. 


350 


The  Eureka  Case. 

From  the  time  gold  was  discovered  in  California,  in 
1848,  until  1866 — a period  of  eighteen  years- — there  was 
no  legislation  hy  Congress-  for  the  sale  of  the  mineral 
lands  of  the  government.  The  value  of  property  in  mines 
on  the  public  lands,  with  the  machinery  and  mills  con- 
structed either  for  their  development  or  the  separation  of 
the  precious  metals  from  the  ores — of  gold  at  first,  and 
afterwards  of  silver  also  — can  hardly  be  estimated.  It 
amounted,  including  the  mining  property  in  Nevada  and 
adjoining  Territories,  as  well  as  in  California,  to  several 
hundred  millions  of  dollars.  Until  1866  all  this  vast  prop- 
erty was  governed  hy  the  regulations  and  customs  of  min- 
ers as  enforced  and  moulded  by  the  Courts,  and  sanctioned 
hy  the  legislation  of  the  Pacific  States  and  Territories. 
Upon  them  the  miners  relied  with  confidence  for  protec- 
tion, and  felt  absolute  security  in  their  possessions.  A 
more  just  and  reasonable  system  for  the  development  of  a 
great  industry  was  never  devised  by  the  wisest  of  legisla- 
tors. In  July,  1866,  Congress  passed  an  act  entitled  “An 
act  granting  the  right  of  way  to  ditch  and  canal  owners 
over  public  lands,  and  for  other  purposes,”  of  which  Sena- 
tor Stewart,  of  Nevada,  was  the  author.  This  act,  in  its 
first  section,  declared  that  the  mineral  lands  of  the  public 
domain,  both  surveyed  and  unsurveyed,  were  free  and  open 
to  exploration  and  occupation  hy  citizens  of  the  United 
States,  and  those  who  had  declared  their  intention  to  be- 
come citizens,  subject  to  such  regulations  as  might  he  pre- 
scribed hy  law,  and  the  local  customs  or  rules  of  miners, 
in  their  several  mining  districts,  so  far  as  the  same  were 
not  in  conflict  with  the  laws  of  the  United  States.  In 
other  sections  provisions  were  made  for  acquiring  the  title 
of  the  United  States  to  claims  in  veins  or  lodes  of  quartz , or 
other  rock  in  place , bearing  gold,  silver,  cinnabar,  or  copper , 
where  the  possessory  right  to  such  claims  had  been  pre- 
viously acquired  under  the  customs  or  rules  of  miners,  and 


351 


upon  which  a certain  amount  in  labor  and  improvements 
had  been  expended.  Although  the  sections  of  the  act  of 
1866,  containing  these  provisions,  were  repealed  by  the 
act  of  May  10th,  1872,  “ To  promote  the  development  of 
the  mining  resources  of  the  United  States,”  the  provisions 
themselves  were  in  substance  re-enacted  in  the  repealing 
act.  The  object  of  the  two  acts,  and  also  of  the  act  of 
1870,  amending  that  of  1866,  was  not  to  interfere  with  the 
possessory  rights  of  the  miners  acquired  under  their  own 
regulations,  but  rather  to  secure  them  by  the  patent  of  the 
United  States,  and  also  to  prescribe,  by  general  law,  the 
extent  of  ground  which  an  individual  claim  might  cover. 
Until  1857,  the  principal  amount  of  mining  was  done  on 
placer  claims.  These  became,  by  that  time,  so  fully  worked 
out  as  to  yield  little  remuneration  to  the  laborer.  More 
profitable  mining,  both  for  gold  and  silver,  was  found  in 
veins  or  lodes  of  quartz,  and  mills  for  crushing  quartz  were 
consequently  erected  in  mining  districts  in  great  numbers. 
Large  deposits  of  gold  were  also  found  in  the  channels  of 
old  streams,  buried  under  the  hills,  in  some  instances  to 
the  depth  of  over  one  hundred  feet  from  the  surface,  and 
hydraulic  machinery  was  employed  to  wash  off  the  super- 
incumbent mass  and  separate  the  mineral. 

Litigation  followed  the  passage  of  the  acts  of  Congress, 
in  many  cases.  The  meaning  of  the  terms  used  had  to  be 
judicially  defined  and  applied.  Miners  were  not  agreed 
as  to  what  was  intended  by  the  terms  “ vein  or  lode  ” of 
quartz,  or  other  rock  in  place,  bearing  gold  or  silver.  The 
acts  gave  to  the  owner  of  claims  on  lodes  a right  to  follow, 
within  certain  parallel  lines,  the  metal  found  within  them, 
and  this  right  was  of  great  importance  and  value  and  was 
the  occasion  of  much  controversy.  A case  from  the  Eu- 
reka Mining  District,  in  the  State  of  Uevada,  between  the 
Eureka  Consolidated  Mining  Company  and  the  Richmond 
Mining  Company,  brought  the  question  as  to  the  meaning, 
of  those  terms  before  the  Circuit  Court  for  decision,  at  its 
July  term  in  1877.  At  the  trial — which  was  had  without 


the  intervention  of  a jury — Judge  Sawyer,  and  also  Judge 
Hillyer  of  the  Xevada  District,  occupied  the  bench  with 
Judge  Field.  The  case  was  tried,  by  stipulation  of  parties, 
at  San  Francisco.  There  were  three  principal  questions 
in  the  case:  1st.  Whether  the  mining  ground  in  contro- 
versy was  part  of  one  vein  or  lode,  within  the  mean- 
ing of  those  terms  in  the  act  of  Congress;  2d.  Whether 
the  patents  of  the  plaintiff  were  valid,  notwithstanding  the 
end  lines  of  the  locations  patented  were  not  parallel,  as 
required  by  the  act  of  1872;  and  3d.  Whether  the  ground 
in  dispute  had  been  assigned  to  the  plaintiff’  in  a settle- 
ment made  in  June,  1873. 

The  Court  gave  an  affirmative  answer  to  these  questions. 
‘Upon  the  ffrst  two,  Judge  Field,  in  delivering  the  opinion 
of  the  Court — first  stating  the  case — said  as  follows  : 

“ The  premises  in  controversy  are  of  great  value,  amounting  by  estima- 
tion to  several  hundred  thousands  of  dollars,  and  the  case  has  been  pre- 
pared for  trial  with  a care  proportionate  to  this  estimate  of  the  value  of 
the  property ; and  the  trial  has  been  conducted  by  counsel  on  both  sides 
with  eminent  ability. 

“Whatever  could  inform,  instruct,  or  enlighten  the  Court  has  been 
presented  by  them.  Practical  miners  have  given  us  their  testimony  as 
to  the  location  and  working  of  the  mine.  Men  of  science  have  explained 
to  us  how  it  was  probable  that  nature  in  her  processes  had  deposited  the 
mineral  where  it  is  found.  Models  of  glass  have  made  the  hill,  where 
the  mining  ground  lies,  transparent,  so  that  we  have  been  able  to  trace 
the  course  of  the  veins  and  see  the  chambers  of  ore  found  in  its  depths. 
For  myself,  after  a somewhat  extended  judicial  experience,  covering  now 
a period  of  nearly  twenty  years,  I can  say  that  I have  seldom,  if  ever, 
seen  a case  involving  the  consideration  of  so  many  and  varied  particu- 
lars, more  thoroughly  prepared  or  more  ably  presented.  And  what  has 
added  a charm  to  the  whole  trial  has  been  the  conduct  of  counsel  on 
both  sides,  who  have  appeared  to  assist  each  other  in  the  development 
of  the  facts  of  the  case,  and  have  furnished  an  illustration  of  the  truth 
that  the  highest  courtesy  is  consistent  with  the  most  earnest  contention. 

“ The  mining  ground  which  forms  the  subject  of  controversy  is  situ- 
ated in  a bill  known  as  Ruby  Hill,  a spur  of  Prospect  Mountain,  distant 
about  two  miles  from  the  town  of  Eureka  in  Nevada.  Prospect  Moun- 
tain is  several  miles  in  length,  running  in  a northerly  and  southerly 
course.  Adjoining  its  northerly  end  is  this  spur  called  Ruby  Hill,  which 
extends  thence  westerly,  or  in  a southwesterly  direction.  Along  and 
through  this  hill,  for  a distance  slightly  exceeding  a mile,  is  a zone  of 


limestone,  in  which,  at  different  places  throughout  its  length,  and  in  va- 
rious forms,  mineral  is  found,  this  mineral  appearing  sometimes  in  a se- 
ries or  succession  of  ore  bodies  more  or  less  closely  connected,  sometimes 
in  apparently  isolated  chambers,  and  at  other  times  in  what  would  seem 
to  be  scattered  grains.  And  our  principal  inquiry  is  to  ascertain  the 
character  of  this  zone,  in  order  to  determine  whether  it  is  to  be  treated 
as  constituting  one  lode,  or  as  embracing  several  lodes,  as  that  term  is 
used  in  the  acts  of  Congress  of  1866  and  1872,  under  which  the  parties 
have  acquired  whatever  rights  they  possess.  In  this  inquiry  the  first 
thing  to  be  settled  is  the  meaning  of  the  term  in  those  acts.  This  mean- 
ing being  settled,  the  physical  characteristics  and  the  distinguishing  fea- 
tures of  the  zone  will  be  considered. 

“ Those  acts  give  no  definition  of  the  term.  They  use  it  always  in  con- 
nection with  the  term  vein.  The  act  of  1866  provided  for  the  acquisition 
of  a patent  by  any  person  or  association  of  persons  claiming  ‘ a vein  or 
lode  of  quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  or 
copper.’  The  act  of  1872  speaks  of  veins  or  lodes  of  quartz  or  other  rock' 
in  place,  bearing  similar  metals  or  ores.  Any  definition  of  the  term 
should,  therefore,  be  sufficiently  broad  to  embrace  deposits  of  the  several 
metals  or  ores  here  mentioned.  In  the  construction  of  statutes,  general 
terms  must  receive  that  interpretation  which  will  include  all  the  in- 
stances enumerated  as  comprehended  by  them.  The  definition  of  a lode 
given  by  geologists  is,  that  of  a fissure  in  the  earth’s  crust  filled  with 
mineral  matter,  or  more  accurately,  as  aggregations  of  mineral  matter 
containing  ores  in  fissures. — (See  Yon  Cotta’s  Treatise  on  Ore  Deposits, 
Prime’s  Translation,  26.)  But  miners  used  the  term  before  geologists  at- 
tempted to  give  it  a definition.  One  of  the  witnesses  in  this  case,  Dr. 
Raymond,  who  for  many  years  was  in  the  service  of  the  general  govern- 
ment as  Commissioner  of  Mining  Statistics,  and  in  that  capacity  had  oc- 
casion to  examine  and  report  upon  a large  number  of  mines  in  the  States 
of  Nevada  and  California,  and  the  Territories  of  Utah  and  Colorado,  says 
that  he  has  been  accustomed  as  a mining  engineer  to  attach  very  little 
importance  to  those  cases  of  classification  of  deposits,  which  simply  in- 
volve the  referring  of  the  subject  back  to  verbal  definitions  in  the  books. 
The  whole  subject  of  the  classification  of  mineral  deposits,  he  states,  to 
be  one  in  which  the  interests  of  the  miner  have  entirely  overridden  the 
reasonings  of  the  chemists  and  geologists.  ‘The  miners,’  to  use  his  lan- 
guage, ‘ made  the  definition  first.  As  used  by  miners,  before  being  defined 
by  any  authority,  the  term  lode  simply  meant  that  formation  by  which 
the  miner  could  be  led  or  guided.  It  is  an  alteration  of  the  verb  lead; 
and  whatever  the  miner  could  follow,  expecting  to  find  ore,  was  his  lode. 
Some  formation  within  which  he  could  find  ore,  and  out  of  which  he 
could  not  expect  to  find  ore,  was  his  lode.’  The  term  lodestar,  guiding 
star,  or  north  star,  he  adds,  is  of  the  same  origin.  Cinnabar  is  not  found 
in  any  fissure  of  the  earth’s  crust,  or  in  any  lode  as  defined  by  geologists, 
yet  the  acts  of  Congress  speak,  as  already  seen,  of  lodes  of  quartz,  or  rock 


in  place,  bearing  cinnabar.  Any  definition  of  lode  as  there  used,  which 
did  not  embrace  deposits  of  cinnabar,  would  be  as  defective  as  if  it  did 
not  embrace  deposits  of  gold  or  silver.  The  definition  must  apply  to  de- 
posits of  all  the  metals  named,  if  it  apply  to  a deposit  of  any  one  of  them. 
Those  acts  were  not  drawn  by  geologists  or  for  geologists ; they  were  not 
framed  in  the  interests  of  science,  and  consequently  with  scientific  accu- 
racy in  the  use  of  terms.  They  were  framed  for  the  protection  of  miners 
in  the  claims  which  they  had  located  and  developed,  and  should  receive 
such  a const  ruction  as  will  carry  out  this  purpose.  The  use  of  the  terms 
vein  and  lode  in  connection  with  each  other  in  the  act  of  1866,  and  their 
use  in  connection  with  the  term  ledge  in  the  act  of  1872,  would  seem  to 
indicate  that  it  was  the  object  of  the  legislator  to  avoid  any  limitation  in 
the  application  of  the  acts,  which  a scientific  definition  of  any  one  of 
these  terms  might  impose. 

“ It  is  difficult  to  give  any  definition  of  the  term  as  understood  and 
used  in  the  acts  of  Congress,  which  will  not  be  subject  to  criticism.  A 
fissure  in  the  earth’s  crust — an  opening  in  its  rocks  and  strata  made  by 
some  force  of  nature,  in  which  the  mineral  is  deposited,  would  seem  to 
be  essential  to  the  definition  of  a lode  in  the  judgment  of  geologists. 
But  to  the  practical  miner  the  fissure  and  its  walls  are  only  of  importance 
as  indicating  the  boundaries  within  which  he  may  look  for  and  reason- 
ably expect  to  find  the  ore  he  seeks.  A continuous  body  of  mineralized 
rock  lying  within  any  other  well-defined  boundaries  on  the  earth’s  sur- 
lace  and  under  it,  would  equally  constitute  in  his  eyes  a lode.  We  are 
of  opinion,  therefore,  that  the  term  as  used  in  the  acts  of  Congress  is  ap- 
plicable to  any  zone  or  belt  of  mineralized  rock  lying  within  boundaries 
clearly  separating  it  from  the  neighboring  rock.  It  includes,  to  use  the 
language  cited  by  counsel,  all  deposits  of  mineral  matter  found  through 
a mineralized  zone  or  belt  coming  from  the  same  -source,  impressed  with 
the  same  forms,  and  appearing  to  have  been  created  by  the  same  pro- 
cesses. 

“ Examining  now,  with  this  definition  in  mind,  the  features  of  the  zone 
which  separate  and  distinguish  it  from  the  surrounding  country,  we  ex- 
perience little  difficulty  in  determining  its  character.  We  find  that  it  is 
contained  within  clearly  defined  limits,  and  that  it  bears  unmistakable 
marks  of  originating,  in  all  its  parts,  under  the  influence  of  the  same 
creative  forces.  It  is  bounded  on  the  south  side,  for  its  whole  length,  at 
least  so  far  as  explorations  have  been  made,  by  a wall  of  quartzite  of  sev- 
eral hundred  feet  in  thickness ; and  on  its  north  side,  for  a like  extent, 
by  a belt  of  clay,  or  shale,  ranging  in  thickness  from  less  than  an  inch  to 
seventy  or  eighty  feet.  At  the  east  end  of  the  zone,  in  the  Jackson 
mine,  the  quartzite  and  shale  approach  so  closely  as  to  be  separated  by  a 
bare  seam,  less  than  an  inch  in  width.  From  that  point  they  diverge, 
until  on  the  surface  in  the  Eureka  mine,  they  are  about  500  feet  apart, 
and  on  the  surface  in  the  Richmond  mine,  about  800  feet.  The  quartzite 
has  a general  dip  to  the  north,  at  an  angle  of  about  45  degrees,  subject 


to  some  local  variations,  as  the  course  changes.  The  clay  or  shale  is 
more  perpendicular,  having  a dip  at  an  angle  of  about  80  degrees.  At 
some  depth  under  the  surface  these  two  boundaries  of  the  limestone,  de- 
scending at  their  respective  angles,  may  come  together.  In  some  of  the 
levels  worked,  they  are  now  only  from  two  to  three  hundred  feet  apart. 

“ The  limestone  found  between  these  two  limits — the  wall  of  quartzite 
and  the  seam  of  clay  or  shale — has,  at  some  period  of  the  world’s  history, 
been  subjected  to  some  dynamic  force  of  nature,  by  which  it  has  been 
broken  up,  crushed,  disintegrated,  and  fissured  in  all  directions,  so  as  to 
destroy,  except  in  three  or  four  places  of  a few  feet  each,  so  far  as  explora- 
tions show,  all  traces  of  stratification  ; thus  specially  fitting  it,  accord- 
ing to  the  testimony  of  the  men  of  science,  to  whom  we  have  listened, 
for  the  reception  of  the  mineral  which,  in  ages  past,  came  up  from  the 
depths  below  in  solution,  and  was  deposited  in  it.  Evidence  that  the 
whole  mass  of  limestone  has  been,  at  some  period,  lifted  up  and  moved 
along  the  quartzite,  is  found  in  the  marks  of  attrition  engraved  on  the 
rock.  This  broken,  crushed,  and  fissured  condition  pervades,  to  a greater 
or  less  extent,  the  whole  body,  showing  that  the  same  forces  which  ope- 
rated upon  a part,  operated  upon  the  whole,  and  at  the  same  time. 
Wherever  the  quartzite  is  exposed  the  marks  of  attrition  appear.  Below 
the  quartzite  no  one  has  penetrated.  Above  the  shale  the  rock  has  not 
been  thus  broken  and  crushed.  Stratification  exists  there.  If  in  some 
isolated  places  there  is  found  evidence  of  disturbance,  that  disturbance 
has  not  been  sufficient  to  affect  the  stratification.  The  broken,  crushed,  and 
fissured  condition  of  the  limestone  gives  it  a specific,  individual  charac- 
ter. by  which  it  can  be  identified  and  separated  from  all  other  limestone 
in  the  vicinity. 

“ In  this  zone  of  limestone  numerous  caves  or  chambers  are  found, 
further  distinguishing  it  from  the  neighboring  rock.  The  limestone  be- 
ing broken  and  crushed  up  as  stated,  the  water  from  above  readily  pene- 
trated into  it,  and  operating  as  a solvent,  formed  these  caves  and  chambers. 
Xo  similar  cavities  are  found  in  the  rock  beyond  the  shale,  its  hard  and 
unbroken  character  not  permitting,  or  at  least  opposing  such  action  from 
the  water  above. 

“Oxide  of  iron  is  also  found  in  numerous  places  throughout  the  zone, 
giving  to  the  miner  assurance  that  the  metal  he  seeks  is  in  its  vicinity. 

“This  broken,  crushed,  and  fissured  condition  of  the  limestone,  the 
presence  of  the  oxides  of  iron,  the  caves  or  chambers  we  have  mentioned, 
with  the  wall  of  quartzite  and  seam  of  clay  bounding  it,  give  to  the  zone, 
in  the  eyes  of  the  practical  miner,  an  individuality,  a oneness  as  com- 
plete as  that  which  the  most  perfect  lode  in  a geological  sense  ever  pos- 
sessed. Each  of  the  characteristics  named,  though  produced  at  a differ- 
ent period  from  the  others,  was  undoubtedly  caused  by  the  same  forces 
operating  at  the  same  time  upon  the  whole  body  of  the  limestone. 

“ Throughout  this  zone  of  limestone,  as  we  have  already  stated,  min- 
eral is  found  in  numerous  fissures  of  the  rock.  According  to  the  opin- 


356 


ions  of  all  tlie  scientific  men  who  have  been  examined,  this  mineral  was 
brought  up  in  solution  from  the  depths  of  the  earth  below',  and  would, 
therefore,  naturally  be  very  irregularly  deposited  in  the  fissures  of  the 
crushed  matter,  as  these  fissures  are  in  every  variety  of  form  and  sjze, 
and  would  also  find  its  way  in  minute  particles  in  the  loose  material  of 
the  rock.  The  evidence  shows  that  it  is  sufficiently  diffused  to  justify 
giving  to  the  limestone  the  general  designation  of  mineralized  matter — 
metal-bearing  rock.  The  three  scientific  experts  produced  by  the  plain- 
tiff’, Mr.  Keyes,  Mr.  Raymond,  and  Mr.  Hunt,  all  of  them  of  large  experi- 
ence and  extensive  attainments,  and  two  of  them  of  national  reputation, 
have  given  it  as  their  opinion,  after  examining  the  ground,  that  the  zone 
of  limestone  between  the  quartzite  and  the  shale  constitutes  one  vein  or 
lode,  in  the  sense  in  which  those  terms  are  used  by  miners.  Mr.  Keyes, 
who  for  years  was  superintendent  of  the  mine  of  the  plaintiff,  concludes 
a minute  description  of  the  character  and  developments  of  the  ground, 
by  stating  that  in  his  judgment,  according  to  the  customs  of  miners  in 
this  country  and  common  sense,  the  whole  of  that  space  should  be  con- 
sidered and  accepted  as  a lead,  lode,  or  ledge  of  metal-bearing  rock  in 
place. 

“ Dr.  Raymond,  after  giving  a like  extended  account  of  the  character 
of  the  ground,  and  his  opinion  as  to  the  causes  of  its  formation,  and  stat- 
ing with  great  minuteness  the  observations  he  had  made,  concludes  by 
announcing  as  his  judgment,  after  carefully  weighing  all  that  he  had  seen, 
that  the  deposit  between  the  quartzite  and  the  shale  is  to  be  considered 
as  a single  vein  in  the  sense  in  which  the  word  is  used  by  miners — that 
is,  as  a single  ore  deposit  of  identical  origin,  age,  and  character  through- 
out. 

“ Dr.  Hunt,  after  stating  the  result  of  his  examination  of  the  ground 
and  his  theory  as  to  the  formation  of  the  mine,  gives  his  judgment  as 
follows : 

My  conclusion  is  this:  that  this  whole  mass  of  jock  is  impregnated 
with  ore;  that  although  the  great  mass  of  ore  stretches  for  a long  dis- 
tance above  horizontally  and  along  an  incline  down  the  foot-wall,  as  I 
have  traced  it,  from  this  deposit  you  can  also  trace  the  ore  into  a succes- 
sion of  great  cavities  or  bonanzas  lying  irregularly  across  the  limestone, 
and  into  smaller  caverns  or  chasms  of  the  same  sort;  and  that  the  whole 
mass  of  the  limestone  is  irregularly  impregnated  with  the  ore.  I use  the 
word  impregnation  in  the  sense  that  it  has  penetrated  here  and  there  ; 
little  patches  and  stains,  ore-vugs  and  caverns  and  spaces  of  all  sizes  and 
all  shapes,  irregularly  disseminated  through  the  mass.  ...  I conclude, 
therefore,  that  this  great  mass  of  ore  is,  in  the  proper  sense  of  the  word, 
a great  lode,  or  a great  vein,  in  the  sense  in  which  the  word  is  used  by 
miners;  and  that  practically  the  only  way  ol'  utilizing  this  deposit,  is  to 
treat  the  whole  of  it  as  one  great  ore-bearing  lode  or  mass  of  rock.’ 

“This  conclusion  as  to  the  zone  constituting  one  lode  of  rock  bearing 
metal,  it  is  true,  is  not  adopted  by  the  men  of  science  produced  as  wit- 


357 


nesses  by  the  defendant,  the  Richmond  Company.  These  latter  gentle- 
men, like  the  others,  have  had  a large  experience  in  the  examination  of 
mines,  and  some  of  them  have  acquired  a national  reputation  for  their 
scientific  attainments.  Xo  one  questions  their  learning  or  ability,  or  the 
sincerity  with  which  they  have  expressed  their  convictions.  They  agree 
with  the  plaintiff's  witnesses  as  to  the  existence  of  the  mineralized  zone  of 
limestone  with  an  underlying  quartzite  and  an  overlying  shale.;  as  to  the 
broken  and  crushed  condition  of  the  limestone,  and  substantially  as  to 
the  origin  of  the  metal  and  its  deposition  in  the  rock.  In  nearly  all  other 
respects  they  disagree.  In  their  judgment  the  zone  of  limestone  has  no 
features  of  a lode.  It  has  no  continuous  fissure,  says  Mr.  King,  to  mark 
it  as  a lode.  A lode,  he.  adds,  must  have  a foot-wall  and  a hanging-wall, 
and  if  it  is  broad,  these  must  connect  at  both  ends,  and  must  connect 
downwards.  Here  there  is  no  hanging-wall  or  foot-wall  ; the  limestone 
ouly  rests  as  a matter  of  stratigraphical  fact  on  underlying  quartzite  and 
the  shale  overlies  it.  And  distinguishing  the  structure  at  Ruby  Hill 
from  the  Comstock  Lode,  the  same  witness  says  that  the  one  is  a series 
of  sedimentary  beds  laid  down  in  the  ocean  and  turned  up ; the  other  is 
a fissure  extending  between  two  rocks. 

“ The  other  witnesses  of  the  defendant,  so  far  as  they  have  expressed 
any  opinion  as  to  what  constitutes  a lode,  have  agreed  with  the  views  of 
Mr.  King.  It  is  impossible  not  to  perceive  that  these  gentlemen  at  all 
times  carried  in  their  minds  the  scientific  definition  of  the  term  as  given 
by  geologists — that  a lode  is  a fissure  in  the  earth’s  crust  filled  with  min- 
eral matter — and  disregarded  the  broader,  though  less  scientific,  defini- 
tion of  the  miner,  who  applies  the  term  to  all  zones  or  belts  of  metal- 
bearing rock  lying  within  clearly  marked  boundaries.  For  the  reasons 
already  stated,  we  are  of  opinion  that  the  acts  of  Congress  use  the  term 
in  the  sense  in  which  miners  understand  it. 

“If  the  scientific  definition  of  a lode,  as  given  by  geologists,  could  be 
accepted  as  the  only  proper  one  in  this  case,  the  theory  of  distinct  veins 
existing  in  distinct  fissures  of  the  limestone,  would  be  not  only  plausible, 
but  reasonable;  for  that  definition  is  not  met  by  the  conditions  in  which 
the  Eureka  mineralized  zone  appears.  But  as  that  definition  cannot  be 
accepted,  and  the  zone  presents  the  case  of  a lode  as  that  term  is  under- 
stood by  miners,  the  theory  of  separate  veins,  as  distinct  and  discon- 
nected bodies  of  ore,  falls  to  the  ground.  It  is,  therefore,  of  little  con- 
sequence what  name  is  given  to  the  bodies  of  ore  in  the  limestone, 
whether  they  be  called  pipe  veins,  rake  veins,  or  pipes  of  ore,  or  receive 
the  new  designation  suggested  by  one  of  the  witnesses,  they  are  but  parts 
of  one  greater  deposit,  which  permeates,  in  a greater  or  less  degree,  with 
occasional  intervening  spaces  of  barren  rock,  the  whole  mass  of  limestone, 
from  the  Jackson  mine  to  the  Richmond,  inclusive. 

“ The  acts  of  Congress  of  1866  and  1872  dealt  with  a practical  necessity 
of  miners;  they  were  passed  to  protect  locations  on  veins  or  lodes,  as 
miners  understood  those  terms.  Instances  without  number  exist  where 


the  meaning  of  words  in  a statute  has  heen  enlarged  or  restricted  and 
qualified  to  carry  out  tire  intention  of  the  Legislature.  The  inquiry, 
where  any  uncertainty  exists,  always  is  as  to  what  the  Legislature  in- 
tended, and  when  that  is  ascertained  it  controls.  In  a recent  case  before 
the  Supreme  Court  of  the  United  States,  singing  birds  were  held  not  to 
he  live  animals,  within  the  meaning  of  a revenue  act  of  Congress. — 

( Riche  vs.  Smgthe,  13  Wall.,  162.)  And  in  a previous  case,  arising  upon 
the  construction  of  the  Oregon  Donation  Act  of  Congress,  the  term,  a 
single  man,  was  held  to  include  in  its  meaning  an  unmarried  woman. — 
— ( Silver  vs.  Ladd , 7 Wall.,  219.)  If  any  one  will  examine  the  two  deci- 
sions, reported  as  they  are  in  Wallace’s  Reports,  he  will  find  good  rea- 
sons for  both  of  them. 

“ Our  judgment  being  that  the  limestone  zone  in  Ruby  Hill,  in  Eu- 
reka District,  lying  between  the  quartzite  and  the  shale,  constitutes, 
within  the  meaning  of  the  acts  of  Congress,  one  lode  of  rock  bearing 
metal,  we  proceed  to  consider  the  rights  conveyed  to  the  parties  by  then- 
respective  patents  from  the  United  States.  All  these  patents  are  founded 
upon  previous  locations,  taken  up  and  improved  according  to  the  cus- 
toms and  rules  of  miners  in  the  district.  Each  patent  is  evidence  of  a 
perfected  right  in  the  patentee  to  the  claim  conveyed,  the  initiatory  step 
for  the  acquisition  of  which  was  the  original  location.  If  the  date  of 
such  location  be  stated  in  the  instrument,  or  appear  from  the  record 
of  its  entry  in  the  local  land  office,  the  patent  will  take  effect  by  rela- 
tion as  of  that  date,  so  far  as  may  be  necessary  to  cut  off  all  intervening 
claimants,  unless  the  prior  right  of  the  patentee,  by  virtue  of  his  earlier 
location,  has  been  lost  by  a failure  to  contest  the  claim  of  the  inter- 
vening claimant,  as  provided  in  the  act  of  1872.  As  in  the  system  estab- 
lished for  the  alienation  of  the  public  lands,  the  patent  is  the  consum- 
mation of  a series  of  acts,  having  for  their  object  the  acquisition  of  a 
title,  the  general  rule  is  to  give  to  it  an  operation  by  relation  at  the  date 
of  the  initiatory  step,  so  far  as  may  be  necessary  to  protect  the  patentee 
against  subsequent  claimants  to  the  same  property.  As  was  said  by  the 
Supreme  Court  in  the  case  of  Sfiepley  vs.  Cowan  (1  Otto,  338),  where  two 
parties  are  contending  for  the  same  property,  the  first  in  time,  in  the 
commencement  of  proceedings  for  the  acquisition  of  the  title,  when  the 
same  are  regularly  followed  up,  is  deemed  to  be  the  first  in  right. 

“ But  this  principle  has  been  qualified  in  its  application  to  patents  of 
mining  ground,  by  provisions  in  the  act  of  1872  for  the  settlement  of 
adverse  claims  before  the  issue  of  the  patent.  Under  that  act,  when  one 
is  seeking  a patent  for  his  mining  location  and  gives  proper  notice  of  the 
fact  as  there  prescribed,  any  other  claimant  of  an  unpatented  location  ob- 
jecting to  the  patent  of  the  claim,  either  on  account  of  its  extent  or 
form,  or  because  of  asserted  prior  location,  must  come  forward  with  his 
objections  and  present  them,  or  he  will  afterwards  be  precluded  from 
objecting  to  the  issue  of  the  patent.  While,  therefore,  the  general  doc- 
trine of  relation  applies  to  mining  patents  so  as  to  cut  off  intervening 


359 


claimants,  if  any  there  can  be,  deriving  title  from  other  sources,  such 
perhaps  as  might  arise  from  a subsequent  location  of  school  warrants 
or  a subsequent  purchase  from  the  State,  as  in  the  case  of  Heydenfeldt  vs. 
Daney  Gold  Mining  Company , reported  in  the  third  of  Otto,  the  doctrine 
cannot  be  applied  so  as  to  cut  off  the  rights  of  the  earlier  patentee,  under 
a later  location  where  no  opposition  to  that  location  was  made  under  the 
statute.  The  silence  of  the  first  locator  is,  under  the  statute,  a waiver 
of  his  priority. 

" But  from  the  view  we  take  of  the  rights  of  the  parties  under  their 
respective  patents,  and  the  locations  upon  which  those  patents  were  is- 
sued, the  question  of  priority  of  location  is  of  no  practical  consequence  in 
the  case. 

" The  plaintiff  is  the  patentee  of  several  locations  on  the  Ruby  Hill 
lode,  but  for  the  purpose  of  this  action  it  is  only  necessary  to  refer  to 
three  of  them — the  patents  for  the  Champion,  the  At  Last,  and  the  Lu- 
pita  or  Margaret  claims.  The  first  of  these  patents  was  issued  in  1872, 
the  second  in  1876,  and  the  third  in  1877.  Within  the  end  lines  of  the 
locations,  as  patented  in  all  these  cases,  when  drawn  down  vertically 
through  the  lode,  the  property  in  controversy  falls.  Objection  is  taken 
to  the  validity  of  the  last  two  patents,  because  the  end  lines  of  the  sur- 
face locations  patented  are  not  parallel,  as  required  by  the  act  of  1872. 
But  to  this  objection  there  are  several  obvious  answers.  In  the  first 
place,  it  does  not  appear  upon  what  locations  the  patents  were  issued. 
They  may  have  been,  and  probably  were,  issued  upon  locations  made 
under  the  act  of  1866,  where  such  parallelism  in  the  end  lines  of  the 
surface  locations  was  not  required.  The  presumption  of  the  law  is,  that 
the  officers  of  the  Executive  Department,  specially  charged  with  the  su- 
pervision of  applications  for  mining  patents,  and  the  issue  of  such  patents, 
did  their  duty  ; and  in  an  action  of  ejectment,  mere  surmises  to  the  con- 
trary will  not  be  listened  to.  If,  under  any  possible  circumstances,  a 
patent  for  a location  without  such  parallelism  may  be  valid,  the  law  will 
presume  that  such  circumstances  existed.  A patent  of  the  United  States 
for  land,  whether  agricultural  or  mineral,  is  something  upon  which  its 
holder  can  rely  for  peace  and  security  in  his  possessions.  In  its  potency 
it  is  ironclad  against  all  mere  speculative  inferences.  In  the  second  place, 
the  provision  of  the  statute  of  1872,  requiring  the  lines  of  each  claim  to 
be  parallel  to  each  other,  is  merely  directory,  and  no  consequence  is  at- 
tached to  a deviation  from  its  direction.  Its  object  is  to  secure  parallel 
end  lines  drawn  vertically  down,  and  that,  was  effected  in  these  cases  by 
taking  the  extreme  points  of  the  respective  locations  on  the  length  of  the 
lode.  In  the  third  place,  the  defect  alleged  does  not  concern  the  defend- 
ant, and  no  one  but  the  government  has  the  right  to  complain.” 

The  Judge  then  proceeded  to  say  that  both  the  defend- 
ant and  the  plaintiff,  by  virtue  of  their  respective  patents, 
whether  issued  upon  locations  under  the  act  of  1866,  or 


under  the  act  of  187*2,  were  limited  to  veins  or  lodes  lying 
within  planes  drawn  vertically  downward  through  the  end 
lines  of  their  respective  locations,  and  that  each  took  the 
ores  found  within  those  planes,  at  any  depth  in  all  veins 
or  lodes,  the  apex  or  top  of  which  lay  within  the  surface 
lines  of  its  locations;  that  the  question  of  priority  of  loca- 
tion was  of  no  practical  importance  in  the  case;  that  this 
question  became  important  only  where  the  lines  of  one 
patent  overlapped  the  other;  that  here  neither  plaintiff 
nor  defendant  could  pass  outside  of  the  end  lines  of  its 
own  location,  whether  they  were  made  before  or  after 
those  upon  which  the  other  party  relied;  and  as  the  ground 
in  dispute  lay  within  planes  drawn  vertically  downward 
through  the  end  lines  of  the  plaintiff’s  location,  the  conclu- 
sion was  that  the  ground  was  the  property  of  the  plaintiff. 
Judgment  was  accordingly  ordered  in  its  favor.  The  same 
conclusion  was  reached  by  the  Court  upon  the  agreement 
of  the  parties  of  the  16th  of  June,  1873. 

Judgment  being  entered  for  the  plaintiff,  an  appeal  was 
taken  to  the  Supreme  Court  of  the  United  States,  and  the 
judgment  was  there  affirmed,  the  Court  placing  its  decision 
upon  the  agreement  of  the  parties.  This  agreement,  how- 
ever, could  not  have  settled  the  controversy,  unless  the 
lines  drawn  on  the  surface  mentioned  in  the  agreement, 
cut  through  the  whole  extent  of  the  mining  property— that 
is,  unless  that  property  was  a part  of  a lode  as  defined  in 
the  opinion  of  the  Circuit  Court.  All  lines  dividing  claims 
upon  veins  or  lodes,  must  necessarily  divide  all  that  the 
location  on  the  surface  carries,  and  would  not  serve  as  a 
boundary  between  them,  if  such  were  not  the  case. — (13 
Otto.) 

The  Pueblo  Case. 

In  a preceding  case  the  existence  of  a Mexican  pueblo , 
or  town,  at  the  site  of  the  present  city  of  San  Francisco — 
its  claim  to  the  use  of  four  square  leagues  of  land — the 
power  of  the  Mexican  Alcaldes  to  distribute  these  lauds 


361 


in  small  parcels  to  the  inhabitants  of  the  town  for  build- 
ing, cultivation,  and  other  uses,  and  the  exercise  of  a sim- 
iliar  power  by  the  Alcaldes  appointed  by  our  military  and 
naval  commanders  after  the  conquest  of  the  country — have 
been  stated. — See  p.  322. 

As  the  Supreme  Court  of  the  United  States  said  in  Tre- 
nouth  vs.  San  Francisco:  “ Upon  the  sudden  increase  of 
population  at  that  place,  following  the  discovery  of  gold, 
the  Alcaldes  were  called  upon  for  building-lots  in  great 
numbers,  and  those  officers  distributed  them  with  a gen- 
erous liberality  usually  attending  the  grant  of  other  peo- 
ple’s property.  Xumerous  persons,  however,  arriving  at 
the  town  were  not  disposed  to  recognize  the  authority  in 
this  respect  of  the  American  magistrates,  and  finding  it 
less  troublesome  to  appropriate  what  land  they  needed 
than  to  apply  to  the  magistrates  for  it,  they  asserted  that 
the  land  on  which  the  pueblo  was  situated  belonged  to  the 
United  States,  and,  as  evidence  of  the  sincerity  of  their 
convictions,  immediately  proceeded  to  take  as  much  of  it 
for  themselves  as  they  could  conveniently  enclose  and  hold. 
Thus  the  town  was  soon  filled  with  an  active  and  restless 
population,  making  large  and  expensive  improvements 
upon  lands  held  in  some  instances  under  grants  from  the 
Alcaldes,  and  in  others  by  the  right  of  prior  possession. 
Sometimes  the  same  parcel  was  claimed  by  different  par- 
ties; by  one  party  as  a settler,  and  by  another  as  the 
holder  of  an  Alcalde  grant.  Disputes  both  in  and  out  of 
the  Courts,  the  natural  consequence  of  this  difference  in 
the  origin  of  the  titles  of  the  claimants,  were  greatly  in- 
creased in  bitterness  by  the  enormous  value  which  in  a 
short  period  the  lands  acquired.” — (10  Otto,  251.) 

After  California  was  organized  as  a State,  San  Fran- 
cisco was  incorporated  as  a city  by  its  Legislature,  and 
municipal  officers  were  elected  to  administer  its  govern- 
ment. As  has  happened  in  many  other  cases,  the  city  con- 
tracted more  debts  than  its  revenues  authorized,  and  did 
not  always  make  suitable  provision  to  meet  its  obligations 


862 


as  they  matured.  Numerous  suits  were  consequently 
instituted  against  it  and  judgments  recovered.  Execu- 
tions were  issued  upon  these  judgments  and  levied  upon 
the  land  claimed  by  the  city.  Those  who  denied  that  the 
city  possessed  any  title  to  the  property,  of  course  paid  no 
attention  to  the  sales;  and  property  of  immense  value, 
covering  in  some  instances  hundreds  of  acres,  was  in 
consequence  struck  off  at  a mere  nominal  price.  What 
tended  to  add  to  the  confusion  of  titles  was  the  different 

I 

opinions  entertained  respecting  them  by  the  Supreme 
Court  of  the  State  at  different  times.  The  first  bench  of 
judges  of  the  Court  decided  that  San  Francisco  never  was 
a pueblo,  bad  no  proprietary  rights,  and  that  the  grants 
made  by  the  Alcaldes  appointed  by  the  American  officers 
after  the  conquest,  conveyed  no  title.  The  successors  of 
these  judges  decided  just  the  reverse,  and  held  that  San 
Francisco  was  a pueblo,  that  it  had  proprietary  rights  to 
four  square  leagues,  and  that  the  change  of  flags  worked 
no  change  in  those  rights  or  the  power  of  her  officers  to 
make  grants  of  the  land.  In  the  mean  time  the  action  of 
the  city  authorities  increased  this  confusion.  Asserting 
that  there  originally  was  a Mexican  pueblo,  and  that  the 
city  of  San  Francisco  bad  succeeded  to  its  proprietary 
rights,  she  made  a claim  to  the  lands  of  the  pueblo, 
as  its  successor,  and  when  the  Board  of  Land  Com- 
missioners- was  created  by  the  act  of  Congress  of  March 
3d,  1851,  she  presented  the  claim  for  confirmation.  In 
December,  1854,  the  Board  confirmed  this  claim  for  a por- 
tion of  the  four  square  leagues.  Dissatisfied  with  the  limi- 
tation of  the  claim,  the  city  appealed  from  the  decree  of  the 
Board  to  the  District  Court  of  the  United  States,  where 
the  case  remained,  undecided  until  September,  1864 — a 
period  of  nearly  ten  years.  Pending  this  appeal,  the  city 
passed  an  ordinance,  known  in  her  history — from  the  name 
of  its  author — as  the  Van  Ness  Ordinance,”  the  object  of 
which,  as  expressed  in  the  title,  was  “ for  the  settlement 
and  quieting  of  the  land  titles  in  the  city  of  San  Fran- 


363 


cisco."  It  relinquished  and  granted  all  the  right  and 
claim  of  the  city  to  land  within  the  corporate  limits,  as  de- 
fined by  the  charter  of  1851 — with  certain  exceptions — to 
parties  in  the  actual  possession  thereof,  by  themselves  or 
tenants,  on  or  before  the  first  of  January,  1855,  provided 
such  possession  was  continued  up  to  the  time  of  the  intro- 
duction of  the  ordinance  into  the  Common  Council,  or 
if  interrupted  by  an  intruder  or  trespasser,  bad  been  or 
might  be  recovered  by  legal  process.  And  it  declared 
that  for  all  the  purposes  contemplated  by  the  ordinance, 
persons  should  be  deemed  possessors,  who  held  titles  to 
lands  within  those  limits  by  virtue  of  a grant  made  by  any 
ayuntamiento,  town  council,  alcalde,  or  justice  of  the  peace 
of  the  former  pueblo,  before  the  7th  of  July,  1846,  or  by 
virtue  of  a grant  subsequently  made  by  those  authorities, 
within  certain  limits  of  the  city,  previous  to  its  incorpora- 
tion by  the  State,  provided  the  grant  or  a material  portion 
of  it  had  been  recorded  in  a proper  book  of  records  in  the 
control  of  the  recorder  of  the  county  previous  to  April  3d, 
1851.  In  March,  1858,  the  Legislature  ratified  and  con- 
firmed this  ordinance.  Its  framers,  however,  being  in 
doubt  whether  the  city  had  any  title  to  the  lands  claimed 
by  her  as  successor  of  the  Mexican  pueblo,  provided  for 
the  ultimate  determination  of  the  question  either  way ; and 
directed,  on  the  assumption  that  the  land  was  public  land, 
that  an  entry  of  it  be  made  at  the  proper  land  office  of  the 
United  States,  and  declared  that  whatever  title  might  be 
acquired,  either  on  a confirmation  of  the  pueblo  claim,  or 
through  the  action  of  the  land  officers,  should  inure  to  the 
benefit  of  parties  in  possession,  within  the  meaning  of  the 
ordinance. 

As  was  to  be  expected,  large  numbers  of  suits  ‘were 
brought  in  the  Courts,  by  the  holders  of  the  conflicting 
titles,  to  test  their  validity.  These  suits  were  carried  to 
the  Supreme  Court  of  the  State,  where  various  decisions 
were  rendered,  not  always  consistent  with  each  other,  nor 
always  meeting  the  entire  approval  of  the  profession,  but 


generally  holding  that  a Mexican  pueblo,  with  an  interest 
of  some  sort  in  the  lands,  had  existed  at  the  site  of  the 
city  on  the  acquisition  of  the  country,  and  that  such  lands, 
like  other  property  of  the  city  not  used  for  public  pur- 
poses, were  vendible  on  execution.  Finally  a test  case — 
Hart  vs,  Burnett-— presenting  the  different  titles  for  adju- 
dication, found  its  way  to  that  Court.  It  was  there  elabo- 
rately argued  by  able  and  learned  counsel,  and  .the  w hole 
law  of  Mexico  upon  the  subject  of  pueblos,  their  organi- 
zation, rights,  and  powers,  the  nature  of  their  proprietary 
rights,  the  effect  of  the  change  of  sovereignty,  the  powers 
of  alcaldes  in  the  disposition  of  municipal  lands,  and  the 
effect  of  the  Van  Hess  Ordinance,  and  the  confirmatory 
act  of  the  Legislature,  were  thoroughly  and  fully  pre- 
sented. The  magnitude  of  the  interests  involved,  the  pre- 
vious uncertainty  in  relation  to  the  law,  and  the  character 
and  erudition  of  the  counsel  employed,  attracted  very 
general  attention  to  the  case. 

In  April,  1860,  the  opinion  of  the  Court,  prepared  by 
Judge  Baldwin  and  concurred  in  by  Judge  Field,  was  de- 
livered. That  opinion  is  remarkable  for  the  exhaustive 
learning  and  research  it  exhibits  upon  the  points  dis- 
cussed. The  law  was  established  with  such  precision  and 
clearness  that  its  doctrines  have  never  since  been  success- 
fully assailed;  on  the  contrary,  they  have  been  repeatedly 
reaffirmed  by  the  Supreme  Court  of  the  State  and  often 
recognized  as  sound  bj7  the  Supreme  Court  of  the  United 
States.  The  Court  held,  among  other  things,  that  at  the 
date  of  the  conquest  and  cession  of  the  country,  San 
Francisco  was  a pueblo;  that,  as  such,  it  had  proprietary 
rights  in  certain  lands  which  were  held  in  trust  for  the 
public  uses  of  the  city  and  for  its  inhabitants,  and  were  not 
subject  to  seizure  and  sale  under  execution;  that  such  por- 
tions as  were  not  set  apart  for  public  uses  could  be  granted 
in  lots  to  its  inhabitants  by  its  ayuntamiento,  or  alcaldes, 
or  other  officers  succeeding  to  their  powers;  that  the  trusts 
upon  wThich  these  lands  were  held  were  public  and  politi- 


365 


cal  in  their  nature,  and.  as  such  had  been,  since  the  organi- 
zation of  the  State,  under  the  control  of  the  Legislature; 
that  the  Van  Xess  Ordinance  and  the  confirmatory  act  of 
the  Legislature  vested  in  the  persons  therein  described  a 
title  to  the  lands  mentioned,  and  that  the  city  held  the 
lands,  not  already  disposed  of  by  herself,  unaffected  by 
sheriff  sales  under  executions  against  her. 

By  this  decision  the  title  of  the  city  to  her  public  squares, 
streets,  sites  for  school-houses,  city  hail,  engine-houses,  and 
other  public  buildings  belonging  to  the  corporation,  and 
other  lots  reserved  by  the  ordinance  for  public  uses,  was 
confirmed  and  established;  and  all  persons  occupying  lands, 
not  thus  reserved,  were  quieted  in  their  possessions,  so  far 
as  any  claim  of  the  city  or  State  was  concerned.  Prop- 
erty of  vast  value,  to  be  estimated  only  by  millions,  was 
thus  secured  to  the  city  or  to  persons  in  possession. 

In  order  to  a complete  settlement  of  the  title,  however, 
it  was  still  necessary  to  obtain  the  action  of  the  tribunals 
of  the  United  States  upon  the  claim  made  by  the  city  as 
successor  of  the  pueblo.  As  already  stated,  the  appeal  to 
tbe  District  Court  from  the  decision  of  the  Commissioners 
had  not  been  acted  upon. 

By  the  5th  section  of  the  act  of  Congress,  entitled  “An 
act  to  expedite  the  settlement  of  titles  to  lands  in  the 
State  of  California,”  passed  July  1,  1864,  all  the  right 
and  title  of  the  United  States  to  land  within  the  corpo- 
rate limits  of  San  Francisco — as  defined  by  its  charter  of 
1851,  with  certain  exceptions  — were  relinquished  and 
granted  to  the  city  and  its  successors  for  the  uses  and 
purposes  specified  in  the  Van  Xess  Ordinance.*  Thus, 
whatever  was  essential  to  perfect  the  title  to  parties 
holding  under  that  ordinance,  and  to  the  city,  was  com- 
pleted. That  section  was  drawn  by  Judge  Field.  The 
exceptions  enumerated  related  to  lands  previously  or  then 
occupied  by  the  United  States  for  military,  naval,  and 
other  purposes,  or  such  parcels  as  might  be  subsequently 

* 13  Stats,  at  Large,  333. 


366 


designated  for  that  purpose  by  the  President  within  a year 
after  the  return  to  the  Land  Office  of  an  approved  plat  of 
the  city  limits.  But  the  claim  of  the  city — as  successor 
of  the  pueblo — was  for  a much  greater  quantity  than  the 
land  embraced  within  the  charter  limits  of  1851,  and,  by 
the  4th  section  of  the  act  mentioned,  authority  was  given 
to  transfer  the  case  pending  in  the  District  Court  to  the 
Circuit  Court  of  the  United  States.  The  case  was  accord- 
ingly transferred  in  September,  1864,  and  it  was  decided 
in  October  of  that  year. 

In  deciding  the  case  Judge  Field  gave  the  following 
opinion  : 

“ This  case  comes  before  this  Court  upon  a transfer  from  the  District 
Court  under  the  act  of  Congress  of  July  1st,  1864,  ‘to  expedite  the  set- 
tlement of  titles  to  lands  in  the  State  of  California.’  It  was  in  the  Dis- 
trict Court  on  appeal  from  the  decree  of  the  Board  of  Land  Commis- 
sioners, created  by  the  act  of  March  3d,  1851.  It  involves  the  consider- 
ation of  the  validity  of  the  claim  asserted  by  the  city  of  San  Francisco 
to  a tract  of  land  situated  in  the  county  of  San  Francisco,  and  embracing 
so  much  of  the  peninsula,  upon  which  the  city  is  located,  as  will  contain 
an  area  of  four  square  leagues. 

“ The  city  presented  her  petition  to  the  Board  of  Land  Commissioners 
in  July,  1852,  asserting  in  substance,  among  other  things,  that,  in  pur- 
suance of  the  laws,  usages,  and  customs  of  the  government  of  Mexico, 
and  the  act  of  the  Departmental  Assembly  of  California  of  November, 
1833,  the  Pueblo  of  San  Francisco’  was  created  a municipal  government, 
and  became  invested  with  all  the  rights,  properties,  and  privileges  of  pu- 
eblos under  the  then  existing  laws,  and  with  the  proprietorship  of  the 
tract  of  land  of  four  square  leagues  above  described  ; that  the  pueblo 
continued  such  municipality  and  proprietor  until  after  the  accession  of 
the  government  of  the  United  States,  July  7th,  1846,  and  until  the  pas- 
sage of  the  act  of  the  Legislature  of  the  State  of  California  incorporating 
the  city  ; and  that  she  thereupon  succeeded  to  the  property  of  the  pueblo, 
and  lias  a good  and  lawful  claim  to  the  same. 

“ In  December,  1854,  the  Board  of  Commissioners  confirmed  the  claim 
of  the  city  to  a portion  of  the  four  square  leagues,  and  rejected  the  claim 
for  the  residue.  The  land  to  which  the  claim  was  confirmed  was  bounded 
by  a line  running  near  the  Mission  of  Dolores,  and  known  as  the  Vallejo 
Line.  That  line  was  adopted  principally  in  reliance  upon  the  genuine- 
ness and  authenticity  of  the  document  described  in  the  proceedings  as 
the  Zamorano  document.  The  spuriousness  of  that  document  is  now- 
admitted  by  all  parties.  From  the  decree  of  the  Board  an  appeal  was 
taken  by  the  filing  of  a transcript  of  the  proceedings  and  decision  with 


the  clerk  of  the  District  Court.  The  appeal  was  by  statute  for  the  bene- 
fit of  the  party  against  whom  the  decision  was  rendered — in  this  case  of 
both  parties — of  the  United  States,  which  controverted  the  entire  claim, 
and  of  the  city,  which  asserted  a claim  to  a larger  quantity  of  land — and 
both  parties  gave  notice  of  their  intention  to  prosecute  the  appeal.  Af- 
terwards, in  February,  1857,  the  Attorney-General  withdrew  the  appeal 
on  the  part  of  the  United  States,  and  in  March  following,  upon  the  stip- 
ulation ef  the  District  Attorney,  the  District  Court  ordered  that  appeal 
to  be  dismissed,  and  gave  leave  to  the  city  to  proceed  upon  the  decree  of 
the  Commission  as  upon  a final  decree.  The  case,  therefore,  remained  in 
the  District  Court  upon  the  appeal  of  the  city  alone,  and  that  is  its  posi- 
tion here.  But  the  proceeding  in  the  District  Court,  being  in  the  nature 
of  an  original  suit,  the  prosecution  of  the  appeal  by  either  party  keeps 
the  whole  issue  open.  ‘ The  suit  in  the  District  Court,’  said  Mr.  Justice 
Nelson  in  United  States  vs.  Ritchie  (17  How'.,  534),  ‘is  to  be  regarded  as 
an  original  proceeding — the  removal  of  the  transcript,  papers,  and  evi- 
dence into  it  from  the  Board  of  Commissioners  being  but  a mode  of  pro- 
viding for  the  institution  of  the  suit  in  that  Court.  The  transfer,  it  is 
true,  is  called  an  appeal  ; we  must  not,  however,  be  misled  by  a name, 
but  look  to  the  substance  and  intent  of  the  proceeding.  The  District 
Court  is  not  confined  to  a mere  re-examination  of  the  case  as  heard  and 
decided  by  the  Board  of  Commissioners,  but  hears  the  case  cle  novo , upon 
the  papers  and  testimony  which  had  been  used  before  the  Board,  they  be- 
ing made  evidence  in  the  District  Court ; and  also  upon  such  further  evi- 
dence as  either  party  may  see  fit  to  produce.’ 

“ But  though  the  whole  issue  is  thus  open,  the  dismissal  of  the  appeal 
on  the  part  of  the  United  States  may  very  properly  be  regarded  as  an  as- 
sent by  the  government  to  the  main  facts  upon  which  the  claim  of  the 
city  rests,  namely  : the  existence  of  an  organized  pueblo  at  the  site  of  the 
present  city  upon  the  acquisition  of  the  country  by  the  United  States  on 
the  7th  of  July,  1846  ; the  possession  by  that  pueblo  of  proprietary  rights 
in  certain  lands,  and  the  succession  to  such  proprietary  rights  by  the  city 
of  San  Francisco.  The  District  Attorney  does  not,  therefore,  deem  it 
within  the  line  of  his  duty  to  controvert  these  positions,  but  on  the  con- 
trary admits  them  as  facts  in  the  case,  contending  only  that  the  lands 
appertaining  to  the  pueblo  wTere  subject,  until  by  grant  from  the  proper 
authorities  they  were  vested  in  private  proprietorship,  to  appropriation 
to  public  uses  by  the  former  government  and,  since  the  acquisition 
of  the  country,  by  the  United  States.  He,  therefore,  insists  upon  an 
exception  from  the  confirmation  to  the  city  of  the  land  heretofore  re- 
served or  occupied  bjr  the  government  for  public  uses  ; and  I do  not  un- 
derstand that  the  counsel  of  the  city  objects  to  an  exception  of  this 
character. 

“It  is  unnecessary,  therefore,  to  recite  the  historical  evidence  of  the 
existence  of  a pueblo  previous  to,  and  at  the  date  of,  the  acquisition  of 
the  country  at  the  present  site  of  the  city  of  San  Francisco,  which  is  very 


fully  presented  in  the  elaborate  opinion  bled  by  tlie  Commission  on  the 
rendition  of  its  decision.  Since  that  decision  was  made  the  question  has 
been  considered  by  the  Supreme  Court  of  the  State  ; and  in  an  opinion 
in  which  the  whole  subject  is  examined  a similar  conclusion  is  reached  ; 
and  if  anything  were  wanting  in  addition  to  the  arguments  thus  fur- 
nished, it  is  found  in  the  able  and  exhaustive  brief  of  the  counsel  of  the 
city.  The  documents  of  undoubted  authenticity,  to  which  the  opinions 
and  the  brief  of  counsel  refer,  establish  beyond  controversy  the  fact  that  a 
pueblo  of  some  kind,  having  an  Ayuntamiento  composed  of  Alcaldes, 
Regidores,  and  other  municipal  officers,  existed  as  early  as  1834;  and 
that  the  pueblo  continued  in  existence  until,  and  subsequent  to,  the  ces- 
sion of  the  country.  The  action  of  the  officers  of  the  United  States  in  the 
government  of  the  city  and  the  appointment  or  election  of  its  magistrates 
after  the  conquest,  both  preceding  and  subsequent  to  the  treaty  of  peace, 
proceeded  upon  the  recognition  of  this  fact ; and  the  titles  to  property 
within  the  limits  of  the  present  city  to  the  value  of  many  millions  rest 
upon  a like  recognition. 

“ The  material  question,  therefore,  for  determination,  as  tlie  case  stands 
before  this  Court,  relates  to  tlie  extent  of  the  lands  in  which  the  pueblo 
was  interested.  It  is  not  pretended  that  such  lands  were  ever  marked 
off  and  surveyed  by  competent  authority.  It  is  admitted,  as  already 
stated,  that  the  so-called  Zamorano  document,  given  in  evidence,  is  spuri- 
ous. The  question  presented  must,  therefore,  be  determined  by  reference 
to  the  laws  of  Mexico  at  the  date  of  the  conquest. 

“ As  stated  by  the  Commissioners  in  their  opinion,  there  can  be  no 
doubt  that  by  those. laws,  pueblos  or  towns,  and  their  residents,  were  en- 
titled to  the  use  and  enjoyment  of  certain  lands  within  the  prescribed 
limits  immediately  contiguous  to  and  adjoining  the  town  proper ; that 
this  right  was  common  to  the  cities  and  towns  of  Spain  from  their  first 
organization,  and  was  incorporated  by  her  colonies  into  their  municipal 
system  on  this  continent ; and  that  the  same  continued  in  Mexico,  with 
but  little  variation,  after  her  separation  from  the  mother  country.  And 
there  is  as  little  doubt  that  by  those  laws  a pueblo  or  town,  when  once 
established  and  officially  recognized,  became  entitled,  for  its  own  use  and 
the  use  of  its  inhabitants,  to  four  square  leagues  of  land.  The  compila- 
tion known  as  tlie  liecopilacion  de  Leyes  de  las  Inclias  contains  several  laws 
relating  to  this  subject.  The  Sixth  Law  of  Title  Five,  of  Book  Four,  pro- 
vides for  the  establishment  of  towns  by  contract  with  individuals,  and 
upon  compliance  with  the  conditions  of  the  contract,  for  the  grant  of  four 
square  leagues  of  land,  to  be  laid  off  in  a square  or  prolonged  form,  ac- 
cording to  the  character  of  the  country. 

“The  opinion  of  the  Assessor  or  legal  adviser  of  the  Vice  Royalty  of 
New  Spain  given  to  the  Commandante  General  in  October,  1785.  upon  the 
petition  of  certain  settlers  in  California,  for  grants  of  tracts  of  land  situ- 
ated within  the  limits  claimed  by  pueblos,  recognizes  this  right  of  pueb- 
los to  have  four  square  leagues  assigned  to  them.  His  language  is  that 


369 


the  grants  ! cannot  nor  ought  to  he  made  to  them  within  the  boundaries 
assigned  to  each  pueblo,  which,  in  conformity  with  the  Law  Six,  Title 
Five,  Liber  Four  of  the  Recopilacion,  must  be  four  leagues  of  land  in  a 
square  or  oblong  body,  according  to  the  nature  of  the  ground  ; because 
the  petition  of  the  new  settlers  would  tend  to  make  them  private  owners 
of  the  forests,  pastures,  water,  timber,  wood,  and  other  advantages  of  the 
lands  which  may  be  assigned,  granted,  and  distributed  to  them,  and  to 
deprive  their  neighbors  of  these  benefits.  It  is  seen  at  once  that  their 
claim  is  entirely  contrary  to  the  directions  of  the  forementioned  laws, 
and  the  express  provision  in  Art.  8 of  the  Instructions  for  Settlements 
(Poblaciones)  in  the  Californias,  according  to  which  all  the  waters,  past- 
ures, wood,  and  timber,  within  the  limits  which  in  conformity  to  law 
may  be  allowed  to  each  pueblo,  must  be  for  the  common  advantage — so 
that  all  the  new  settlers  may  enjoy  and  partake  of  them,  maintaining 
thereon  their  cattle,  and  participating  of  the  other  benefits  that  may  be 
produced.’ 

“ But  the  royal  instructions  of  November,  1789,  for  the  establishment 
of  the  town  of  Pitic,  in  the  province  of  Sonora,  is  conclusive  as  to  the 
right  of  pueblos  in  California  under  the  laws  of  Spain. 

“ The  instructions  were  made  applicable  to  all  new  towns  that  should 
be  subsequently  established  within  the  general  comandancia , which  in- 
cluded the  province  of  California.  They  gave  minute  directions  for  the 
formation  and  government  of  the  new  pueblos,  and  referring  to  the  laws 
of  the  Indies  already  cited,  declared  that  there  should  be  granted  to  the 
towns  four  leagues. of  land  in  a square  or  prolonged  form.  They  also  pro- 
vided for  the  distribution  of  building  and  farming  lots  to  settlers,  the 
laying  out  of  pasture  lands  and  lands  for  the  propios,  the  residue  to  con- 
stitute the  egidos  or  commons  for  the  use  of  the  inhabitants. 

“ The  general  provisions  of  the  laws  of  the  Indies,  to  which  these  in- 
structions and  the  opinion  of  the  Assessor  refer,  continued  in  force  in 
Mexico  after  her  separation  from  Spain.  They  were  recognized  in  the 
regulations  of  November,  1828,  which  were  adopted  to  carry  into  effect 
the  Colonization  Law  of  1824,  and  in  the  regulation  of  the  Departmental 
Assembly  of  August,  1834,  providing  funds  for  towns  and  cities.  They 
were  referred  to  in  numerous  documents  in  the  archives  of  the  former 
government  in  the  custody  of  the  Surveyor-General.  The  report  of 
Jimeno,  for  many  years  Secretary  of  the  Government  of  California,  found 
in  the  expediente  of  Dona  Castro  made  in  February,  1844,  is  cited  by  the 
Commissioners  in  their  opinion  as  removing  all  doubt  on  this  point.  The 
report  is  as  follows  : 

“ • Most  Excellent  Governor. — The  title  given  to  Dona  Castro  is 
drawn,  subject  to  the  conditions  that  were  inserted  in  many  other  titles 
during  the  time  of  Gen.  Figueroa,  in  which  they  subjected  the  parties  to 
pay  census  (taxes)  if  the  land  proved  to  belong  to  the  egidos  of  the  town. 

“ 1 1 understand  that  the  town  of  Branciforte  is  to  have  for  egidos  of  its 
population  four  square  leagues,  in  conformity  to  the  existing  law  of  the 


Recopilacion  of  the  Indies,  in  volume  the  second,  folios  88  to  149.  in  which 
it  mentions  that  to  the  new  towns  that  extent  may  be  marked,  to  which 
effect  it  would  be  convenient  that  your  Excellency  should  commission 
two  persons  deserving  your  confidence,  in  order  that  accompanied  by  the 
Judge  of  the  Town,  the  measurement  indicated  may  be  made,  and  it  may 
be  declared  for  egicloft  of  the  town  the  four  square  leagues,  leaving  to  the 
deliberation  of  your  Excellency  to  free  some  of  the  grantees  of  the  con- 
ditions to  which  they  are  subject.  The  supreme  judgment  of  your  Ex- 
cellency may  resolve  as  it  may  deem  it  convenient. 

“ ‘ Monterey,  February  8th,  1844.  Manuel  Jimeno.’ 

“ The  documents  to  which  reference  has  been  made  are  sufficient  to 
establish  the  position  that  pueblos  ouce  formed  and  officially  recognized 
as  such,  became  by  operation  of  the  general  laws  entitled  to  have  four 
square  leagues  of  land  assigned  to  them,  for  their  use  and  the  use  of  their 
inhabitants.  It  does  notappear  that  formal  grants  were  made  to  the  new 
pueblos,  though  in  some  instances  an  officer  was  appointed  to  mark  off 
the  boundaries  of  the  four  square  leagues,  aud  to  designate  the  uses  to 
which  particular  tracts  should  be  applied.  But  the  right  of  the  pueblos 
and  their  inhabitants  to  the  use  and  enjoyment  of  the  lands  was  not  made 
dependent  upon  such  measurement  and  designation. 

“ It  follows  from  these  views  that  the  pueldo,  which  is  admitted  to 
have  been  regularly  established  at  the  site  of  San  Francisco,  on  the  sev- 
enth of  July,  1846,  was,  as  such  pueblo,  vested  with  the  right  to  four 
square  leagues  of  land,  to  be  measured  either  in  a square  or  prolonged 
form,  according  to  the  nature  of  the  country,  excepting  from  such  tract 
such  portions  as  had  been  previously  dedicated  to  or  reserved  for  public 
uses,  or  had  become  private  property  by  grant  from  lawful  authority. 

“It  is  difficult  to  determine  with  precision  the  exact  character  of  the 
right  or  title  held  by  pueblos  to  the  lands  assigned  to  them.  The  govern- 
ment undoubtedly  retained  a right  to  control  their  use  and  disposition, 
and  to  appropriate  them  to  public  uses  until  they  had  been  vested  in 
private  proprietorship.  Numerous  laws  have  been  cited  to  show  that  the 
title  remained  absolutely  in  the  government.  The  same  laws  were  cited 
to  the  Supreme  Court  of  this  State  when  the  subject  was  before  that  tri- 
bunal, and  in  relation  to  them  the  Court  said : 1 We  see  nothing  in  these 
laws  opposed  to  the  views  we  have  already  expressed,  that  the  towns  had 
such  a right,  title,  and  interest  in  these  lands  as  to  enable  them  to  use  and 
dispose  of  them  in  the  manner  authorized  by  law  or  by  special  orders,  and 
consonant  with  the  object  of  the  endowment  and  trust.  Undoubtedly 
the  right  of  control  remained  in  the  sovereign,  who  might  authorize  or 
forbid  any  municipal  or  other  officer  to  grant  or  dispose  of  such  lands, 
even  for  the  purpose  of  the  endowment  or  trust.  Such  general  right, 
with  respect  to  a public  corporation,  exists  in  any  sovereign  State,  and 
must,  of  course,  have  existed  in  the  absolute  monarchy  of  Spain,  where 
the  property  of  private  corporations  and  individuals  was  to  a great  de- 
gree subject  to  the  royal  will  and  pleasure.’ — {Hurl  rs.  Burnett,  15  Cal., 


371 


569.)  And  referring  to  objections  to  the  theory  of  absolute  title  in  the 
pueblo,  and  the  questions  which  upon  that  view  might  be  suggested,  the 
Court  said  : ‘ There  is  but  one  sensible  answer  to  these  questions,  and  we 
think  that  answer  is  given  in  the  laws  themselves,  and  in  the  recorded 
proceedings  of  the  officers  who  administered  them,  and  who  must  be  pre- 
sumed to  have  interpreted  them  correctly.  It  is,  that  the  lands  assigned 
to  pueblos,  whether  by  general  law  regulating  their  limits  to  four  leagues, 
or  by  special  designation  of  boundaries,  were  not  given  to  them  in  abso- 
lute property,  with  full  right  of  disposition  and  alienation,  but  to  be  held 
by  them  in  trust  for  the  benefit  of  the  entire  community,  with  such 
powers  of  use,  disposition,  and  alienation,  as  had  been  already  or  might 
afterwards  be  conferred  for  the  due  execution  of  such  trusts,  upon  such 
pueblos,  or  upon  their  officers.’ — (Id.,  576.)  And  this  view,  the  Court 
adds,  fully  reconciles  the  apparently  conflicting  disposition  of  the  laws 
and  the  commentaries  of  publicists  respecting  the  relative  rights  of  the 
Crown  and  the  municipalities  to  which  counsel  had  referred. 

“ In  this  view  of  the  nature  of  the  title  of  the  pueblo  and  of  the  city, 
its  successor,  I fully  concur;  and  I am  of  opinion  that  under  the  provi- 
sions of  the  act  of  March  3d,  1851,  the  city  is  entitled  to  a confirmation 
of  her  claim.  I regret  that  the  recent  transfer  of  the  case  to  the  Circuit 
Court,  and  the  great  pressure  of  other  engagements  since,  have  prevented 
me  from  considering  at  greater  length  the  interesting  questions  presented. 
To  those  who  desire  to  extend  their  inquiries,  the  elaborate  opinions  to 
which  I have  made  frequent  reference,  and  the  able  brief  of  counsel  will 
furnish  ample  materials. 

“ A decree  will  be  entered  confirming  the  claim  of  the  City  of  San 
Francisco  to  a tract  of  land,  situated  in  the  county  of  San  Francisco,  and 
embracing  so  much  of  the  peninsula  upon  which  the  city  is  located  as 
will  contain  an  area  equal  to  four  square  leagues,  as  described  in  the  pe- 
tition. From  the  confirmation  will  be  excepted  such  parcels  of  land 
within  said  tract  as  have  been  heretofore  reserved  or  dedicated  to  public 
use  by  the  United  States,  or  have  been  by  grant  from  lawful  authority 
vested  in  private  proprietorship.  The  confirmation  will  be  in  trust  for 
the  benefit  of  lot-holders  under  grants  from  the  pueblo,  town,  or  city  ; 
and  as  to  any  residue,  in  trust  for  the  use  and  benefit  of  all  the  inhab- 
itants. A decree  will  be  prepared  by  counsel  in  conformity  with  this 
opinion  and  submitted  to  the  Court.”  * — (4  Sawyer,  559-67.) 


* The  following  extract  is  from  the  opinion  of  the  Supreme  Court  of  the  State,  in 
Hart  vs.  Burnett,  reported  in  15  California  Reports  : 

“On  the  third  of  November,  1834,  the  Territorial  Deputation  authorized  the  election 
of  an  Ayuntamiento,  to  reside  at  the  Presidio  of  San  Francisco,  to  be  composed  of 
an  Alcalde,  two  Regidores  or  Couneilmen,  and  a Sindico-Proeurator.  This  Ayunta- 
miento, when  organized,  was  to  exercise  the  political  functions  pertaining  to  such 
office,  and  the  Alcalde  was  also  to  perform  the  judicial  functions  which  the  laws  con- 
ferred upon  him.  This  decree  was  communicated  to  the  Military  Commandant  by 
the  Governor,  on  the  fourth  of  November,  1834.  An  election  was  accordingly  held 
on  the  seventh  of  December,  1834,  at  the  Presidio  of  San  Francisco,  and  the  Ayunta- 

25 


A motion  for  a rehearing  having  been  afterwards  made, 
the  decree  entered  was  modified,  and  as  finally  settled 
was  not  entered  until  the  18th  of  May  of  the  following 
year,  1865.  By  it  the  claim  of  the  city,  subject  to  certain 
reservations,  was  confirmed  to  the  extent  of  four  square 
leagues  embracing  the  northern  portion  of  the  peninsula, 
upon  which  the  city  is  situated,  above  ordinary  high-water 
mark  in  1846,  and  bounded  on  the  north  and  east  by  the 
Bay  of  San  Francisco;  on  the  west  by  the  Ocean,  and  on 
the  south  b}r  a due  east  and  west  line  so  as  to  include  the 
area  designated.  The  title,  so  confirmed,  wras  declared  to 
be  in  trust  for  the  benefit  of  lot-holders  under  grants 
from  the  pueblo,  town,  city,  or  other  competent  authority, 
and  as  to  any  residue,  in  trust  for  the  use  and  benefit  of 
the  inhabitants  of  the  city.  From  this  decree  appeals 
were  taken  to  the  Supreme  Court,  both  by  the  city  and 
the  United  States;  by  the  latter  from  the  whole  decree, 
and  by  the  former  from  so  much  as  included  the  reserva- 
tions in  the  estimate  of  the  quantity  of  land  confirmed. 
This  appeal,  in  the  ordinary  course  of  the  business  of  tbe 
Supreme  Court,  would  not  have  been  reached  for  tw'o  or 


miento  duly  installed.  A similar  election  was  held  on  the  thirteenth  of  December 
of  the  following  year  (1835),  at  the  same  place,  which  was  then  officially  designated 
as  the  Pueblo  of  San  Francisco.  Other  elections  of  the  same  character  were  subse- 
quently held;  and  there  are  numerous  official  documents,  of  undisputed  authen- 
ticity, which  refer  to  the  ‘Ayuntamiento  of  San  Francisco,’  the  ‘Alcalde  of  San  Fran- 
cisco,’and  to  the  ‘ Pueblo  of  San  Francisco,’ proving,  as  we  think,  beyond  a doubt, 
that  there  was  at  that  place,  in  1834, 1835, 1836,  and  subsequently,  a pueblo  of  some 
kind,  with  an  Ayuntamiento  composed  of  Alcaldes,  Regidores,  and  other  municipal 
officers.  What  were  the  rights  of  this  municipality,  and  what  the  powers  of  its  offi- 
cers, and  the  extent  of  its  territory  and  jurisdiction,  we  shall  not  now  inquire.  We 
here  refer  merely  to  the  fact  of  the  existence,  at  that  time  and  at  that  place,  of  such 
an  organization,  whether  corporate  or  incorporate.  And  that  fact  is  proved  by  the 
official  returns  of  elections,  by  the  official  acts  of  the  Governor  and  of  the  Territorial 
or  Departmental  Legislature,  by  the  official  correspondence  of  government  officers, 
and  by  the  acts,  proceedings,  records,  and  correspondence  of  the  officers  of  the 
pueblo  itself.  As  a part  of  the  evidence  of  this  fact,  we  refer  to  the  election  returns 
of  December  7th,  1834,  December  13th,  1835,  December  3d,  1837,  and  December  8th, 
1838;  to  the  Governor’s  letters  of  January  31st,  1835,  October  26th,  1835,  January  19th, 
1836,  January  17th,  1839,  and  November  14th,  1843  ; to  the  expediente  of  proceedings 
between  May  and  November,  1835,  with  respect  to  certain  persons  obliged  to  serve  as 
municipal  officers  of  that  pueblo;  and  to  the  official  correspondence  between  the 
Alcaldes  of  that  pueblo  and  the  various  officers  of  the  Territorial  or  Departmental 
Government  of  California.” — (15  Cal.,  540.) 


-373 


three  years;  and  inasmuch  as  the  decree  of  the  Circuit 
Court  was  found  to  give  very  general  satisfaction,  and  a 
desire  was  freely  expressed  that  a final  end  of  this  litiga- 
tion be  arrived  at  on  the  basis  of  that  decree,  Judge  Field 
prepared  a bill,  which  was  introduced  and  passed  by  tbe 
united  assistance  of  the  whole  delegation  in  Congress 
from  California  and  Xevada,  quieting  the  title  of  the  city 
to  all  lands  embraced  within  the  decree  of  confirmation. 
This  act  of  Congress  became  a law  on  the  8th  of  March, 
1866.  By  it  all  the  right  and  title  of  the  United  States 
to  the  land  embraced  in  the  decree  of  the  Circuit  Court 
were  relinquished  and  granted  to  the  city,  and  its  claim 
to  the  land  was  confirmed,  subject  to  certain  exceptions 
and  reservations,  and  upon  trust  that  all  the  lands  not 
previously  granted  by  the  city,  should  be  disposed  of  and 
conveyed  by  it  to  the  parties  in  the  bona-fide  actual  pos- 
session thereof,  by  themselves  or  tenants,  on  the  pass- 
age of  the  act,  in  such  quantities  and  upon  such  terms 
and  conditions  as  the  Legislature  of  the  State  might  pre- 
scribe, except  such  parcels  as  might  be  reserved  and  set 
apart  by  ordinance  of  the  city  for  public  uses.  Shortly 
afterwards  the  appeals  to  the  Supreme  Court  were  dis- 
missed by  stipulation  of  the  parties,  and  the  litigation  over 
the  source  of  title  to  the  lands  within  the  city  was  thus 
settled  and  closed.  As  has  been  adjudged  by  the  Su- 
preme Court  of  the  United  States,  the  title  to  the  lands 
within  the  four  square  leagues  rests  upon  the  decree  of 
the  Circuit  Court,  and  this  confirmatory  act  of  Congress. 

In  several  cases  in  the  Circuit  Court  and  in  the  Supreme 
Court  of  the  United  States,  in  which  the  opinions  were 
delivered  by  Judge  Field,  the  positions  settled  by  this  de- 
cision, viz.,  the  existence  of  a pueblo  at  the  site  of  the  city 
of  San  Francisco  at  the  time  the  country  was  acquired  by 
the  United  States;  the  possession  by  it  of  certain  proprie- 
tary rights  to  land,  and  the  succession  to  them  of  tbe 
present  city,  are  either  impliedly  recognized  or  directly 
asserted.  The  following  are  the  cases  in  the  Circuit  Court: 


374 


Grisar  vs.  McDowell  (4  Sawyer,  599);  United  States  vs. 
Hare  (Ibid.,  653);  United  States  vs.  Carr  (3  Ibid.,  481); 
and  Tripp  vs.  Spring  (5  Ibid.,  219).  The  following  are 
the  cases  in  the  Supreme  Court : Townsend  vs.  Greely 
(5  Wall.,  326  );  Grisar  vs.  McDowell  (6  Ibid.,  363  );  and 
Trenouth  vs.  San  Francisco  (10  Otto,  251). 

The  fifth  section  of  the  act  of  July  1, 1864,  “ to  expedite 
the  settlement  of  titles  to  lands  in  the  State  of  California,” 
mentioned  above,  is  as  follows  : 

“ Sec.  5.  And  he  it  further  enacted , That  all  the  right  and  title  of  the 
United  States  to  the  lands  within  the  corporate  limits  of  the  City  of  San 
Francisco,  as  defined  in  the  act  incorporating  said  city,  passed  by  the 
Legislature  of  the  State  of  California  on  the  fifteenth  of  April,  one  thou- 
sand eight  hundred  and  fifty  one,  are  hereby  relinquished  and  granted 
to  the  said  city  and  its  successors,  for  the  uses  and  purposes  specified  in 
the  ordinance  of  said  city,  ratified  by  an  act  of  the  Legislature  of  the  said 
State,  approved  on  the  eleventh  of  March,  eighteen  hundred  and  fifty- 
eight,  entitled  ‘ An  act  concerning  the  City  of  San  Francisco,  and  to  ratify 
and  confirm  certain  ordinances  of  the  common  council  of  said  city,’  there 
being  excepted  from  this  relinquishment  and  grant  all  sites  or  other  par- 
cels of  lands  which  have  been,  or  now  are,  occupied  by  the  United  States 
for  military,  or  other  public  uses,  [or  such  other  sites  or  parcels  as  may 
hereafter  be  designated  by  the  President  of  the  United  States,  within  one 
year  after  the  rendition  to  the  General  Land  Office,  by  the  Surveyor- 
General,  of  an  approved  plat  of  the  exterior  limits  of  San  Francisco,  as 
recognized  in  this  section,  in  connection  with  the  lines  of  the  public  sur- 
veys : And  provided,  That  the  relinquishment  and  grant  by  this  act  shall 
in  no  manner  intefere  with  or  prejudice  any  bona-fide  claims  of  others, 
whether  asserted  adversely  under  rights  derived  from  Spain,  Mexico,  or 
the  laws  of  the  United  States,  nor  preclude  a judicial  examination  and  ad- 
justment thereof.”] — (13  Stats,  at  Large,  333.) 

The  part  included  within  brackets  was  inserted  at  the 
request  of  the  Commissioner  of  the  General  Land  Office. 
Ho  map,  such  as  is  there  mentioned,  was  ever  sent  to  the 
General  Land  Office.  The  only  map  made  was  of  the 
land  subsequently  confirmed  to  the  city.  Nor  were  any 
reservations  ever  made  by  the  War  Department. 

This  section  was,  as  stated  above,  drawn  by  Judge  Field, 
but  the  honor  of  securing  its  passage,  with  the  rest  of  the 
act,  is  due  to  Senator  Conness, 


The  act  of  March  8th,  1866,  entitled  “An  act  to  quiet 
the  title  to  certain  lands  within  the  corporate  limits  of  the 
city  of  San  Francisco,”  is  as  follows: 

“ Be  it  enacted  by  the  Senate  and  Rouse  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  the  right  and  titie 
of  the  United  States  to  the  land  situated  within  the  corporate  limits 
of  the  city  of  San  Francisco,  in  the  State  of  California,  confirmed  to  the 
city  of  San  Francisco  by  the  decree  of  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  California,  entered  on  the  eighteenth 
day  of  May,  one  thousand  eight  hundred  and  sixty-five,  be,  and  the  same 
are  hereby,  relinquished  and  granted  to  the  said  city  of  San  Francisco 
and  its  successors,  and  the  claim  of  the  said  city  to  said  land  is  hereby 
confirmed,  subject,  however,  to  the  reservations  and  exceptions  designated 
in  said  decree,  and  upon  the  following  trusts,  namely:  that  all  the  said 
land,  not  heretofore  granted  to  said  city,  shall  be  disposed  of  and  con- 
veyed by  said  city  to  parties  in  the  bona  fide  actual  possession  thereof, 
by  themselves  or  tenants,  on  the  passage  of  this  act,  in  such  quantities 
and  upon  such  terms  and  conditions  as  the  Legislature  of  the  State  of 
California  may  prescribe,  except  such  parcels  thereof  as  may  be  reserved 
and  set  apart  by  ordinance  of  said  city  for  public  uses : Provided,  how- 
ever, That  the  relinquishment  and  grant  by  this  act  shall  not  interfere 
with  or  prejudice  any  valid  adverse  right  or  claim,  if  such  exist,  to  said 
land  or  any  part  thereof,  whether  derived  from  Spain,  Mexico,  or  the 
United  States,  or  preclude  a judicial  examination  and  adjustment  thereof. 
— (14  Stat.  at  Large,  4.)” 

The  bill  for  this  act  was,  as  stated  above,  also  drawn  by 
Judge  Field.  He  gave  it  to  Senator  Conness,  who  took 
charge  of  it  in  the  Senate,  and  through  his  influence  it 
was  passed  by  that  body.  In  the  House,  Mr.  McRuer  took 
charge  of  it,  and,  with  the  aid  of  the  rest  of  the  State  del- 
egation, and  of  the  delegation  from  Nevada,  its  passage 
there  was  secured. 

The  appeals  to  the  Supreme  Court  of  the  United  States 
from  the  decree  in  the  Pueblo  Case  being  dismissed  after 
the  passage  of  this  act,  as  stated  above,  the  municipal  au- 
thorities proceeded,  under  its  provisions,  to  set  apart  lands 
for  school-houses,  hospitals,  court-house  buildings,  and 
other  public  purposes,  and,  through  their  exertions,  second- 
ed and  encouraged  by  Mr.  McCoppin,the  very  able  and  effi- 
cient Mayor  of  the  city  at  that  time,  a park  was  laid  out 


376 


upon  the  Ocean  and  the  Golden  Gate,  which  is  known  as 
the  Ocean  Park,  and  which,  in  time,  will  be  one  of  the  tinest 
parks  in  the  world.  But  inasmuch  as,  in  many  cases, 
the  ground  taken  for  public  purposes  and  for  the  park, 
was  occupied  by  settlers  or  had  been  purchased  by  them, 
an  assessment  was  levied  by  the  city,  with  the  approval 
of  the  Legislature,  upon  other  lands  conveyed  to  the 
occupants,  as  a condition  of  their  receiving  the  deeds  of 
the  city,  and  the  moneys  obtained  in  this  way  were  applied 
to  compensate  those  whose  lands  had  been  thus  appro- 
priated. 


The  Chinese  in  California,  and  the  Legislation  of  the 
State  and  of  the  City  of  San  Francisco  against 
them. 

The  presence  of  Chinese  in  California,  and  the  constant 
immigration  of  them  into  the  State,  has  created  a great 
deal  of  irritation  with  its  inhabitants  of  other  races,  and 
has  led,  not  only  to  much  inflammatory  declamation,  but 
to  legislation — -State  and  municipal — in  conflict  with  the 
Constitution  of  the  LTnited  States,  and  which,  if  it  should 
he  carried  out,  would  involve  the  destruction  of  the  most 
important  powers  of  the  General  Government. 

The  Constitution  vests  in  Congress  the  power  to  regu- 
late commerce  with  foreign  nations,  and  that  includes  the 
transportation  of  persons  as  well  as  goods.  Congress 
alone  can  determine  the  conditions  upon  which  foreigners 
shall  be  permitted  to  land  and  remain  in  the  country. 
The  State  may,  indeed,  as  a matter  of  self-preservation, 
exclude  convicts,  paupers,  persons  having  contagious  or 
incurable  diseases,  or  likely  to  become  a charge  upon  it. 
Whatever  legislation  is  required  for  any  thing  further 
must  proceed  from  Congress.  Except  in  the  cases  men- 
tioned, its  power  is  absolute  and  exclusive.  Yet  the  legis- 
lation, both  of  the  State  and  of  the  city  of  San  Francisco, 


377 


against  the  Chinese,  has  been  in  direct  disregard  of  this 
well-settled  doctrine  of  constitutional  law. 

Again,  the  President  and  Senate  of  the  United  States 
are  vested  exclusively  with  the  treaty-making  power  of  the 
government.  That  power  extends  to  all  subjects  of  for- 
eign commerce,  to  all  forms  of  intercourse  with  foreign 
nations,  and  may  prescribe  the  rights  and  privileges  which 
shall  be  accorded  to  their  citizens  or  subjects.  By  treaty, 
the  conditions  upon  which  foreigners  shall  he  allowed  to 
reside,  do  business,  purchase  and  hold  property  in  the 
country,  may  be  designated.  And  the  Constitution  de- 
clares that  “ all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land.”  As  will  be  seen  hereafter,  the 
legislation— State  and  municipal — of  California,  has  been 
directly  in  the  face  of  the  express  and  positive  stipula- 
tions of  our  treaties  with  China. 

Again,  the  Fourteenth  Amendment  of  the  Constitution 
declares  that  no  State  shall  deny  to  any  person  within  its 
jurisdiction  “ the  equal  protection  of  the  laws” — a provi- 
sion which  makes  equality  before  the  law  the  constitu- 
tional right  of  every  person  within  the  territory  of  the 
United  States,  from  whatever  country  he  may  have  come, 
or  from  whatever  race  he  may  have  descended.  Yet  the 
legislation — State  and  municipal — of  California  against 
the  Chinese  has  been  in  open  and  flagrant  disregard  of 
this  command.  So  palpable  has  been  this  disregard  that 
no  just  man  in  his  senses  could  deny  it. 

For  some  centuries  previously  to  the  present  one,  the 
policy  of  China  was  to  exclude  intercourse  with  foreign 
nations,  except  for  purposes  of  trade  at  a few  designated 
ports.  All  entrance  into  the  interior  of  the  country,  and 
even  trading,  except  at  the  points  designated,  was  strictly 
forbidden,  and  the  law  imposing  the  prohibition  was  rig- 
orously enforced.  Many  attempts  were  made  by  Euro- 
pean nations  to  induce  the  Chinese  government  to  make 
treaties  with  them,  but  approaches  of  the  kind  were  gen- 


erally  repelled,  or  the  reception  of  ministers  was  allowed 
only  on  condition  of  performing  such  acts  of  humiliation 
as  few  nations  would  permit. 

In  August,  1842,  as  the  result  of  the  war  between  Eng- 
land and  China,  caused  by  the  seizure  by  the  Chinese  gov- 
ernment of  opium  imported  in  violation  of  its  laws  by  the 
East  India  Company,  a treaty  was  signed  between  them 
providing  for  “ lasting  peace  and  friendship  between 
them,”  and  also  the  payment  by  China  to  England  of 
twenty-one  millions  of  dollars. 

Americans,  ever  since  their  independence,  had  carried 
on  trade  with  China,  and  had  at  this  time  a factory  at 
Canton.  They  had  no  trouble  with  the  Chinese  people  or 
the  government,  and  all  that  the  Chinese  government  had 
yielded  by  compulsion  to  the  English,  it  freely  granted  to 
them  by  a treaty  made  July  13th,  1844,  negotiated  on  be- 
half of  the  United  States  by  our  minister,  Caleb  Cushing. 
This  treaty  was  ratified  in  December  of  the  following 
year.  It  opens  by  stating  that  “The  United  States  of 
America  and  the  Ta  Tsing  Empire,  desiring  to  establish 
firm,  lasting,  and  sincere  friendship  between  the  two  na- 
tions, have  resolved  to  fix,  in  a manner  clear  and  positive, 
by  means  of  a treaty  or  general  convention  of  peace, 
amity,  and  commerce,  the  rules  which  shall  in  future  be 
mutually  observed  in  the  intercourse  of  their  respective 
countries.” 

And  it  declares,  in  its  first  article,  that  “ there  shall  be 
a perfect,  permanent,  and  universal  peace,  and  a sincere 
and  cordial  amity  between  the  United  States  of  America, 
on  the  one  part,  and  the  Ta  Tsing  Empire,  on  the  other 
part,  and  between  their  people,  respectively,  without  excep- 
tion of  persons  or  places.”  And,  in  article  nineteen,  that 
“ all  citizens  of  the  United  States  in  China,  peaceably  at- 
tending to  their  affairs,  being  placed  on  a common  footing 
of  amity  and  good-will  with  subjects  of  China,  shall  re- 
ceive and  enjoy,  for  themselves  and  everything  apper- 
taining to  them,  the  special  protection  of  the  local  authori- 


ties  of  government,  who  shall  defend  them  from  all  insult 
or  injury  of  any  sort  on  the  part  of  the  Chinese.  If  their 
dwellings  or  property  he  threatened  or  attacked  by  mobs, 
incendiaries,  or  other  violent  or  lawless  persons,  the  local 
officers,  on  requisition  of  the  consul,  will  immediately 
despatch  a military  force  to  disperse  the  rioters,  and  will 
apprehend  the  guilty  individuals  and  punish  them  with 
the  utmost  rigor  of  the  law.” 

There  is,  throughout  this  treaty,  an  unusual  and  studied 
warmth  of  expression,  and  its  thirty-four  articles  are  all 
in  favor  of  Americans.  There  is  not  one  securing  any 
special  right  or  advantage  to  China,  and  no  complaint  has 
been  made  that  a single  article  has  ever  been  violated. 

The  peace  between  England  and  China,  following  the 
enforced  treaty  between  those  two  countries,  was  not  real. 
There  were  continued  riots  at  Canton,  and  in  May,  1847, 
British  ships-of-war  captured  some  Chinese  forts  ; and 
in  1856  the  two  nations  were  in  open  war.  President 
Buchanan  sent  Hon.  William  B.  Beed,  of  Philadelphia,  to 
watch  the  course  of  events,  and  to  act  the  part  of  media- 
tor and  peace-maker  when  opportunity  should  offer.  He 
endeavored,  in  vain,  to  persuade  the  Chinese  officials  to 
yield  to  the  demands  of  England.  But  in  the  midst  of 
the  troubles  with  that  country,  and  on  the  18tli  of  June, 
1858,  a new  treaty  was  signed  between  the  Hnited  States 
and  China.  In  it  the  Chinese  government  reiterated,  in 
equally  strong  language,  their  cordial  regard  and  appre- 
ciation of  the  United  States.  In  its  first  paragraph  it  de- 
clares that  “there  shall  be,  as  there  have  always  been, 
peace  and  friendship  between  the  United  States  of  Amer- 
ica and  the  Ta  Tsing  Empire,  and  between  their  people, 
respectively.  They  shall  not  insult  or  oppress  each  other 
for  any  trifling  cause,  so  as  to  produce  an  estrangement 
between  them;  and  if  any  other  nation  should  act  unjustly 
or  oppressively,  the  United  States  will  exert  their  good 
offices,  on  being  informed  of  the  case,  to  bring  about  an 


380 


amicable  arrangement  of  the  question,  thus  showing  their 
friendly  feelings.” — (12  Stats,  at  Large,  1,023.) 

In  article  eleven  it  declares  that  “ all  citizens  of  the 
United  States  of  American  in  China,  peaceably  attending 
to  their  affairs,  being  placed  on  a common  footing  of  amity 
and  good-will  with  subjects  of  China,  shall  receive  and 
enjoy  for  themselves  and  everything  appertaining  to  them, 
the  protection  of  the  local  authorities  of  government,  who 
shall  defend  them  from  all  insult  or  injury  of  any  sort. 
If  their  dwellings  or  property  be  threatened  or  attacked 
by  mobs,  incendiaries,  or  other  violent  or  lawless  persons, 
the  local  officers,  on  requisition  of  the  consul,  shall  imme- 
diately despatch  a military  force  to  disperse  the  rioters,  ap- 
prehend the  guilty  individuals,  and  punish  them  with  the 
utmost  rigor  of  the  law.” 

And  in  article  twenty-nine,  protection  is  given  to  Chris- 
tians teaching  and  following  the  principles  of  their  relig- 
ion. It  is  as  follows:  “ The  principles  of  the  Christian  re- 
ligion, as  professed  by  the  Protestant  and  Roman  Catholic 
Churches,  are  recognized  as  teaching  men  to  do  good,  and 
to  do  to  others  as  they  would  have  others  do  to  them. 
Hereafter  those  who  quietly  profess  and  teach  these  doc- 
trines shall  not  he  harassed  nor  persecuted  on  account  of 
their  faith.  Any  person,  whether  citizen  of  the  United 
States  or  Chinese  convert,  who,  according  to  these  tenets, 
peaceably  teaches  and  practices  the  principles  of  Christi- 
anity, shall  in  no  case  be  interfered  with  or  molested.” 

It  is  seldom  that  the  annals  of  diplomacy  exhibit  such 
a manifestation  of  trust  and  friendship. 

In  1868  Hon.  Anson  Burlingame  came  to  the  United 
States  at  the  head  of  a mission  from  China.  It  is  still 
fresh  in  the  recollection  of  all,  with  what  enthusiasm  this 
mission  was  received,  how  its  members  were  entertained 
and  banqueted  on  their  arrival  at  San  Francisco,  and  how 
some  of  the  leading  men  of  the  State  rejoiced  at  what  they 
believed  to  be  the  opening  of  intercourse  between  the  two 


l 


381 


countries,  which  would  he  immensely  beneficial  to  the 
United  States,  and  particularly  to  California. 

In  July,  1868,  through  this  mission,  additional  articles 
to  the  treaty  of  1858  were  concluded  and  signed.  Of  these 
articles  the  5th,  6th,  and  7th  are  as  follows: 

“Article  5.  The  United  States  of  America  and  the  Emperor  of  China 
cordially  recognize  the  inherent  and  inalienable  right  of  man  to  change 
his  home  aud  allegiance,  and  also  the  mutual  advantage  of  the  free  mi- 
gration and  emigration  of  their  citizens  and  subjects,  respectively,  from 
the  one  country  to  the  other,  for  purposes  of  curiosity,  of  trade,  or  as  per- 
manent residents.  The  high  contracting  parties,  therefore,  join  in  repro- 
bating any  other  than  an  entirely  voluntary  emigration  for  these  purposes. 
They  consequently  agree  to  pass  laws  making  it  a penal  offence  for  a citi- 
zen of  the  United  States  or  Chinese  subjects  to  take  Chinese  subjects 
either  to  the  United  States  or  to  any  other  foreign  country,  or  for  a Chi- 
nese subject  or  citizen  of  the  United  States  to  take  citizens  of  the  United 
States  to  China  or  to  any  other  foreign  country,  without  their  free  and 
voluntary  consent  respectively. 

“ Article  (5.  Citizens  of  the  United  States,  visiting  or  residing  in 
China,  shall  enjoy  the  same  privileges,  immunities,  or  exemptions  in  re- 
spect to  travel  or  residence,  as  may  there  be  enjoyed  by  the  citizens  or 
subjects  of  the  most  favored  nation,  and  reciprocally  Chinese  subjects, 
visiting  or  residing  in  the  United  States,  shall  enjoy  the  same  privileges, 
immunities,  and  exemptions  in  respect  to  travel  or  residence,  as  may 
there  be  enjoyed  by  the  citizens  or  subjects  of  the  most  favored  nation. 
But  nothing  herein  contained  shall  be  held  to  confer  naturalization  upon 
citizens  of  the  United  States  in  China,  nor  upon  the  subjects  of  China  in 
the  United  States. 

“ Article  7.  Citizens  of  the  United  States  shall  enjoy  all  the  privileges 
of  the  public  educational  institutions  under  the  control  of  the  govern- 
ment of  China  ; and,  reciprocally,  Chinese  subjects  shall  enjoy  all  the  priv- 
ileges of  the  public  educational  institutions  under  the  control  of  the  gov- 
ernment of  the  United  States  which  are  enjoyed  in  the  respective  countries 
by  the  citizens  or  subjects  of  the  most  favored  nation.  The  citizens  of 
the  United  States  may  freely  establish  and  maintain  schools  within  the 
Empire  of  China,  at  those  places  where  foreigners  are  by  treaty  permitted 
to  reside  ; and,  reciprocally,  Chinese  subjects  may  enjoy  the  same  priv- 
ileges and  immunities  in  the  United  States.” 

With  these  treaties — with  these  strong  expressions  of 
friendship  and  pledges  of  protection  to  the  people  of  the 
two  countries — by  each  to  the  people  of  the  other  coun- 
try— the  legislation  of  California,  and  also  of  the  city  of 
San  Francisco,  has  been  almost  constantly  in  conflict. 


382 


On  the  25th  of  April,  1855,  the  Legislature  of  the  State 
passed  an  act  entitled  “An  act  to  discourage  immigration 
to  this  State  of  persons  who  cannot  become  citizens 
thereof,”  which  imposed  a tax  of  fifty  dollars  upon  every 
person  arriving  in  the  State  who  was  incompetent  to  be- 
come a citizen.  This  was  directed  especially  at  the  Chi- 
nese, as  they,  with  a very  few  exceptions,  were  the  only 
persons  coming  to  this  country,  who,  under  our  laws,  could 
not  become  naturalized.  This  act  was  declared  unconsti- 
tutional by  the  Supreme  Court  of  the  State  in  People  vs. 
Downer  (7  Cal.,  169). 

On  the  26th  of  April,  1858,  an  act  was  passed  entitled 
“An  act  to  prevent  the  further  immigration  of  Chinese  or 
Mongolians  to  this  State,”  which  absolutely  forbade  their 
landing  in  California,  under  a penalty  of  from  four  hun- 
dred to  six  hundred  dollars,  and  imprisonment.  This, 
also,  was  held  to  be  unconstitutional  and  was  never  en- 
forced. 

On  the  26th  of  April,  1862,  was  passed  “An  act  to  pro- 
tect free,  white  labor  against  competition  with  Chinese 
coolie  labor,  and  discourage  the  immigration  of  the  Chinese 
into  the  State  of  California,”  which  imposed  on  each  Chi- 
nese, male  or  female,  a monthly  capitation  tax  of  two  dol- 
lars and  a half.  This  act  was  declared  unconstitutional 
by  the  Supreme  Court  of  the  State  in  Lin  Sing  vs.  Wash- 
burn (20  Cal.,  534). 

In  the  year  1872,  the  Legislature  adopted  a series  of 
codes,  embracing  the  whole  body  of  the  law  of  the  State. 
One  of  these  was  entitled  “ The  Political  Code”  of  the 
State,  and  a chapter,  under  the  title  of  “ General  Po- 
lice ” of  the  State,  contains  provisions  relating  to  immi- 
gration. Some  of  the  sections  of  the  chapter  were 
amended  in  1874.  They  required  the  master  of  a ves- 
sel arriving  at  any  port  of  the  State,  bringing  passen- 
gers from  any  plac6  out  of  the  State,  to  make  a written 
report  to  the  Commissioner  of  Immigration  at  such  port, 
stating,  amongst  other  things,  the  name,  place  of  birth, 


383 


last  residence,  age,  and  occupation  of  all  passengers 
who  were  not  citizens  of -the  United  States,  and  whether 
any  of  the  passengers,  thus  reported,  “ are  lunatic,  idi- 
otic, deaf,  dumb,  blind,  crippled,  or  infirm  and  not  ac- 
companied by  any  relative  able  to  support  them,  or  lewd 
or  abandoned  women.”  One  section,  as  amended  in 
1874,  required  “ the  .Commissioner  of  Immigration  ‘to 
satisfy  himself  whether  or  not  any  passenger  who  shall 
arrive  in  this  State  ‘by  vessels  from  any  foreign  port  or 
place  (who  is  not  a citizen  of  the  United  States),  is  luna- 
tic, idiotic,  deaf,  dumb,  blind,  crippled  or  infirm,  and  is 
not  accompanied  by  relatives  who  are  able  and  willing  to 
support  him,  or  is  likely  to  become  permanently  a public 
charge,  or  has  been  a pauper  in  any  other  country,  or  is, 
from  sickness  or  dis'ease,  existing  either  at  the  time  of 
sailing  from  the  port  of  departure,  or  at  the  time  of  bis 
arrival  in  this  State,  a public  charge,  or  likely  to  become 
so,  or  is  a convicted  criminal,  or  a lewd  or  debauched  wo- 
man;’ and  then  declare  that  ‘ no  person  who  shall  belong 
to  either  class,  or  who  possesses  any  of  the  infirmities  or 
vices  specified  herein,  shall  be  permitted  to  land  in  this 
State,  unless  the  master,  owner,  or  consignee  of  said  vessel 
shall  give  a joint  and  several  bond  to  the  people  of  the 
State  of  California,  in  the  penal  sum  of  five  hundred  dol- 
lars, in  gold  coin  of  the  United  States,  conditioned  to  in- 
demnify and  save  harmless  every  county,  city  and  county, 
town  and  city  of  this  State  against  all  costs  and  expenses 
which  may  be  by  them  necessarily  incurred  for  the  relief, 
support,  medical  care,  or  any  expense  whatever,  resulting 
from  the  infirmities  or  vices  herein  referred  to,  of  the  per- 
sons named  in  said  bonds,  within  two  years  from  the  date 
of  said  bonds;  . . . and  if  the  master,  owner,  or  con- 

signee of  said  vessel  shall  fail  or  refuse  to  execute  the 
bond  herein  required  to  be  executed,  they  are  required  to 
retain  such  persons  on  board  of  said  vessel  until  said  ves- 
sel shall  leave  the  port,  and  then  convey  said  passengers 
from  this  State;  and  if  said  master,  owner,  or  consignee 


384 

shall  fail  or  refuse  to  perform  the  duty  and  service  last 
herein  enjoined,  or  shall  permit  said  passengers  to  escape 
from  said  vessel  and  land  in  this  State,  they  shall  forfeit 
to  the  State  the  sum  of  live  hundred  dollars,  in  gold  coin 
of  the  United  States,  for  each  passenger  so  escaped,  to  he 
recovered  by  suit  at  law.’  ” 

Under  the  provisions  of  this  section  the  case  of  Ah  Fong, 
a Chinese  woman,  came  before  the  Circuit  Court  on  writ 
of  habeas  corpus. 

The  case  was  as  follows:  The  petitioner,  a subject  of 
the  Emperor  of  China,  arrived  at  the  port  of  San  Fran- 
cisco as  a passenger  on  board  the  American  steamship 
“ Japan,”  owned  by  the  Pacific  Mail  Steamship  Company, 
under  the  command,  as  master,  of  J.  H.  Freeman,  in  Au- 
gust, 1874.  On  the  arrival  of  the  steamship  she  was 
boarded  by  the  Commissioner  of  Immigration  of  Cali- 
fornia, who  proceeded,  under  the  provisions  of  the  above 
statute,  to  examine  into  the  character  of  the  petitioner 
and  of  other  alien  passengers.  Upon  such  examina- 
tion the  Commissioner  found,  and  so  declared,  that  the 
petitioner  and  twenty-one  other  persons,  also  subjects  of 
the  Empire  of  China,  arriving  as  passengers  by  the  same 
steamship,  were  lewd  and  debauched  women.  Fie  there- 
upon prohibited  the  mastor  of  the  steamship  from  land- 
ing the  women,  unless  he  or  the  owner  or  consignee  of 
the  vessel  gave  the  bonds  required  by  the  statute.  Nei- 
ther of  the  parties  designated  would  consent  to  give  the 
required  bonds,  and  the  women  were  consequently  de- 
tained by  the  master  on  board  of  the  steamship.  They 
thereupon  applied  for  a writ  of  habeas  corpus  to  a District 
Court  of  the  State,  to  inquire  into  the  cause  of  their  de- 
tention, alleging  in  their  petition  its  illegality,  on  the 
ground  that  the  statute  under  which  they  were  held  was 
in  contravention  of  the  treaty  between  the  United  States 
and  the  Empire  of  China,  and  in  conflict  with  the  Con- 
stitution of  the  United  States,  and  denying,  also,  that  they 
were  either  lewd  or  debauched  women.  The  District 


Court  granted  the  application  and  heard  the  petitioners, 
and  after  the  hearing,  remanded  them  back  to  the  charge 
of  the  master  of  the  steamship,  holding  that  the  statute 
of  California  was  neither  in  violation  of  the  treaty  or  the 
Constitution,  and  that  the  evidence  presented  justified  the 
finding  of  the  Commissioner,  that  the  petitioners  were 
lewd  and  debauched  women.  The  petitioners  thereupon 
applied  to  the  Chief  Justice  of  the  State  for  another  writ 
of  habeas  corpus,  alleging  the  illegality  of  their  restraint, 
on  grounds  similar  to  those  taken  in  the  petition  to  the 
District  Court,  and  also  alleging  that  they  were,  since  the 
order  of  the  District  Court  remanding  them  to  the  custody 
of  the  master  of  the  steamship,  about  to  he  forcibly  re- 
turned to  China  against  their  will  and  consent.  They 
therefore  prayed  that  with  the  writ  of  habeas  corpus  a 
warrant  might  issue  to  the  Sheriff  of  the  city  and  county 
of  San  Francisco  to  take  them  into  his  custody.  The  Chief 
Justice  granted  the  writ,  returnable  before  the  Supreme 
Court  of  the  State,  and  at  the  same  time  issued  a warrant 
commanding  the  Coroner  of  the  city  and  county  to  take 
the  parties  into  his  custody. 

Under  this  warrant  the  parties  were  taken  into  the  cus- 
tody of  the  Coroner  and  brought  before  the  Court,  which 
sustained  the  ruling  of  the  District  Court,  and  denied  the 
application  of  the  parties  to  be  discharged.  It  further  di- 
rected that  the  Coroner  should  return  the  parties  to  the 
master  or  owner  or  consignee  of  the  steamship  Japan,  on 
board  of  the  steamship,  and  required  such  master,  owner, 
or  consignee  to  retain  the  parties  on  board  of  the  steam- 
ship until  she  should  leave  the  port  of  San  Francisco,  and 
then  to  carry  them  beyond  the  State. 

Its  order  also  provided,  that  in  case  the  steamship 
Japan  was  not  in  the  port  of  San  Francisco,  the  Coroner 
should  retain  the  parties  in  his  possession  until  the  arrival 
in  port  of  the  steamship,  and  then  enforce  the  order  re- 
turning the  parties  to  the  vessel,  or  retain  the  parties  until 
the  further  direction  of  the  Court. 


386 


The  petitioner  was  one  of  the  women  thus  held  by  the 
Coroner,  and  she  invoked  the  aid  of  the  Circuit  Court  to 
be  released  from  her  restraint,  alleging,  as  in  the  other  ap- 
plications, that  the  restraint  was  illegal,  that  the  statute 
which  is  supposed  to  authorize  it  was  in  contravention  of 
the  treaty  with  China  and  the  Constitution  of  the  United 
States,  and  averring  that  she  was  not  within  either  of  the 
classes  designated  in  the  statute.  It  further  appeared  from 
the  special  traverse  to  the  return  of  the  Coroner,  and  was 
admitted  by  counsel,  that  since  the  judgment  of  the  Su- 
preme Court,  the  steamship  Japan  had  sailed  from  the  port 
of  San  Francisco,  and  would  not  probably  return  under 
three  months,  and  that  Freeman  had  been  discharged  from 
the  service  of  the  steamship  company,  and  was  no  longer 
master  of  the  Japan. 

The  case  was  heard  in  the  Circuit  Court  by  Judge  Field, 
assisted  by  Judges  Sawyer  and  Hoffman. 

There  was  no  evidence  presented  to  the  Court  that  the 
women  were  lewd  or  abandoned  women,  except  that  the 
Commissioner  of  Immigration  had  so  concluded,  and  it 
was  stated  that  he  came  to  such  conclusion  from  their 
general  appearance  and  the  particular  sleeves  they  wore 
as  part  of  their  dress.  It  was  not  pretended  or  suggested 
that  the  Commissioner  had  taken  any  testimony  upon 
the  subject,  or  had  any  information  whatever,  except  from 
personal  observation  of  them,  to  govern  his  action  in  the 
matter  ; and,  in  point  of  fact,  two  of  the  women  were 
wives  of  persons  at  the  time  in  the  employment  of  Mr. 
William  C.  Ralston,  the  cashier  of  the  Bank  of  Califor- 
nia, at  his  residence  at  Belmont.  He  so  stated  to  the  pre- 
siding judge,  and  offered  his  affidavit  to  that  effect,  with 
that  of  his  servants. 

There  is  no  doubt  that  a State,  in  the  interest  of  decency 
and  morality,  may  exclude  from  its  borders  lewd  and  aban- 
doned women  who  persist  in  following  prostitution,  but  in 
every  government  which  makes  any  pretence  of  affording 
security  against  wanton  accusation,  some  evidence  of  such 


•387 

purpose  should  be  produced  more  than  the  mere  guess  or 
inference  of  a Commissioner  of  Immigration,  from  per- 
sonal inspection  of  the  parties  whilst  walking  over  the 
deck  of  a vessel.  The  law  of  California  in  this  case  (as 
will  he  seen)  confounded  all  distinctions,  and  opened  the 
door  to  the  greatest  oppression  and  cruelty.  In  deciding 
the  case,  after  stating  the  provisions  of  the  section  quoted, 
Judge  Field  gave  the  following  opinion: 

“ In  ee  Ah  Fong. 

“ The  decision  of  the  District  Court,  and  of  the  Supreme  Court  of  the 
State,  although  entitled  to  great  respect  and  consideration  from  the  ac- 
knowledged ability  and  learning  of  their  judges,  is  not  binding  upon  this 
Court.  The  petitioner  being  an  alien,  and  a subject  of  a country  having 
treaty  relations  with  the  government  of  the  United  States,  has  a right 
to  invoke  the  aid  of  the  federal  tribunals  for  her  protection,  when  her 
rights,  guaranteed  by  the  treaty,  or  the  Constitution,  or  any  law  of  Con- 
gress, are  in  any  respect  invaded  ; and  is,  of  course,  entitled  to  a hearing 
upon  any  allegation  in  proper  form  that  her  rights  are  thus  invaded. 

‘‘  I proceed,  therefore,  to  the  consideration  of  the  questions  presented, 
notwithstanding  the  adjudications  of  the  State  tribunals.” 

Here  the  Judge  quoted  the  provisions  of  the  section 
given  above,  and  continued  as  follows  : 

“ The  provisions  of  this  section  are  of  a very  extraordinary  character. 
They  make  no  distinction  between  the  deaf,  the  dumb,  the  blind,  the 
crippled,  and  the  infirm,  who  are  poor  and  dependent,  and  those  who 
are  able  to  support  themselves  and  are  in  possession  of  wealth  and  all  its 
appliances.  If  they  are  not  accompanied  by  relatives,  both  able  and 
willing  to  support  them,  they  are  prohibited  from  landing  within  the 
State,  unless  a specified  bond  is  given,  not  by  them  or  such  competent 
sureties  as  they  may  obtain,  but  by  the  owner,  master,  or  consignee  of 
the  vessel.  Neither  do  the  provisions  of  the  statute  make  any  distinc- 
tion between  a present  pauper,  and  one  who  has  been  a pauper,  but  has 
ceased  to  be  such.  If  the  emigrant  has  ever  been  within  that  unfortnate 
class,  notwithstanding  he  may  have  at  the  time  ample  means  at  his  com- 
mand, he  must  obtain  the  designated  bond  or  be  excluded  from  the 
State.  They  subject  also  to  the  same  condition,  and  possible  exclusion, 
the  passenger  whose  sickness  or  disease  has  been  contracted  on  the  pas- 
sage, as  well  as  the  passenger  who  was  sick  or  diseased  on  his  departure 
from  the  foreign  port.  It  matters  not  that  the  sickness  may  have  been 
produced  by  exertions  for  the  safety  of  the  ship  or  passengers,  or  by  at- 
tentions to  their  wants  or  health.  If  he  is  likely  on  his  arrival  to  be- 

26 


388 


come  a public  charge,  he  must  obtain  the  bond  designated,  or  he  denied 
a landing  within  the  State.  Nor  does  the  statute  make  any  distinction 
between  the  criminal  convicted  for  a misdemeanor,  or  a felony,  or  for  an 
offence  malum  in  se , or  one  political  in  its  character.  The  condemned 
patriot,  escaping  from  his  prison  and  fleeing  to  our  shores,  stands  under 
the  law  upon  the  same  footing  with  the  common  felon  who  is  a fugitive 
from  justice.  Nor  is  there  any  difference  made  between  the  woman, 
whose  lewdness  consists  in  private  unlawful  indulgence,  and  the  woman 
who  publicly  prostitutes  her  person  for  hire,  or  between  the  woman  de- 
bauched by  intemperance  in  food  or  drink,  or  debauched  by  the  loss  of 
her  chastity. 

l'  A statute  thus  sweeping  in  its  terms,  confounding  by  general  desig- 
nation persons  widely  variant  in  character,  is  not  entitled  to  any  very 
high  commendation.  If  it  can  be  sustained  as  the  exercise  of  the 
police  power  of  the  State  as  to  any  persons  brought  within  any  of  the 
classes  designated,  it  must  be  sustained  as  to  all  the  persons  of  such 
class.  That  is  to  say,  if  it  can  be  sustained  when  applied  to  the  infirm, 
who  is  poor  and  dependent,  when  unaccompanied  by  his  relatives, 
able  and  willing  to  support  him,  it  must  be  sustained  when  applied 
to  the  infirm,  who  is  surrounded  by  wealth  and  its  attendants,  if  he  is 
thus  unaccompanied.  If  it  can  be  sustained  when  applied  to  a woman 
whose  debauchery  consists  in  the  prostitution  of  her  person,  it  must  be 
sustained  when  applied  to  a woman  whose  debauchery  consists  in  her 
intemperance  in  food  and  drink  ; and  even  when  applied  to  the  repent- 
ant Magdalen,  who  has  once  yielded  to  temptation  and  lost  her  virtue. 
The  Commissioner  of  Immigration  is  not  empowered  to  make  any  dis- 
tinction between  persons  of  the  same  class;  and  there  is  nothing  on  the 
face  of  the  act  which  indicates  that  the  Legislature  intended  that  any 
distinction  should  be  made. 

“It  is  undoubtedly  true  that  the  poliee  power  of  the  State  extends  to 
all  matters  relating  to  the  internal  government  of  the  State,  and  the  ad- 
ministration of  its  laws,  which  have  not  been  surrendered  to  the  General 
Government,  and  embraces  regulations  affecting  the  health,  good  order, 
morals,  peace,  and  safety  of  society.  Under  this  power  all  sorts  of  re- 
strictions and  burdens  maybe  imposed,  having  for  their  object  the  ad- 
vancement of  the  welfare  of  the  people  of  the  State,  and  when  these  are 
notin  conflict  with  established  principles,  or  any  constitutional  prohibi- 
tion, their  validity  cannot  be  questioned. 

It  is  equally  true  that  the  police  power  of  the  State  may  be  exercised 
by  precautionary  measures  against  the  increase  of  crime  or  pauperism, 
or  the  spread  of  infectious  diseases  from  persons  coming  from  other  coun- 
tries; that  the  State  may  entirely  exclude  convicts,  lepers,  and  persons 
afflicted  with  incurable  disease;  may  refuse  admission  to  paupers,  idiots, 
and  lunatics  and  others,  who  from  physical  causes  are  likely  to  become  a 
charge  upon  the  public,  until  security  is  afforded  that-  they  will  not  be- 
come such  a charge;  and  may  isolate  the  temporarily  diseased  until  the 


danger  of  contagion  is  gone.  The  legality  of  precautionary  measures  of 
this  kind  has  never  been  doubted.  The  right  of  the  State  in  this  respect 
has  its  foundation,  as  observed  by  Mr.  Justice  Grier  in  the  Passenger 
Cases,  in  the  sacred  law  of  self-defence,  which  no  power  granted  to  Con- 
gress can  restrain  or  annul. 

“ But  the  extent  of  the  power  of  the  State  to  exclude  a foreigner  from 
its  territory  is  limited  by  the  right  in  which  it  had  its  origin,  the  right 
of  self-defence.  Whatever  outside  of  the  legitimate  exercise  of  this  right 
affects  the  intercourse  of  foreigners  with  our  people,  their  immigration  to 
this  country  and  residence  therein,  is  exclusively  within  the  jurisdiction 
of  the  General  Government,  and  is  not  subject  to  State  control  or  inter- 
ference. To  that  government  the  treaty-making  power  is  confided  ; also 
the  power  to  regulate  commerce  with  foreign  nations,  which  includes  in- 
tercourse with  them  as  well  as  traffic  : also  the  power  to  prescribe  the 
conditions  of  migration  or  importation  of  persons,  and  rules  of  naturali- 
zation; whilst  the  States  are  forbidden  to  enter  into  any  treaty,  alliance, 
or  confederation  with  other  nations. 

“ I am  aware  that  the  right  of  the  State  to  exclude  from  its  limits  any 
persons  whom  it  may  deem  dangerous  or  injurious  to  the  interests  and 
welfare  of  its  citizens,  has  been  asserted  by  eminent  judges  of  the  Su- 
preme Court  of  the  United  States.  Mr.  Chief  Justice  Taney  maintained 
the  existence  of  this  right  in  his  dissenting  opinion  in  the  Passenger 
Cases,  and  asserted  that  the  power  had  been  recognized  in  previous  de- 
cisions of  the  Court.  The  language  of  the  opinion  in  the  case  of  the  City 
of  New  York  vs.  Mil n (11  Peters,  141)  would  seem  to  sustain  this  doc- 
trine. But  neither  in  the  Passenger  Cases  nor  in  the  case  of  the  City  of 
New  York  vs.  Miln,  did  the  decision  of  the  Court  require  any  considera- 
tion of  the  power  of  exclusion  which  the  State  possessed ; and  all  that 
was  said  by  the  eminent  judges  in  those  eases  upon  that  subject,  was  ar- 
gumentative and  not  necessary  and  authoritative. 

“ But  independent  of  this  consideration,  we  cannot  shut  our  eyes  to 
the  fact  that  much  which  was  formerly  said  upon  the  power  of  the  State 
in  this  respect,  grew  out  of  the  necessity  which  the  Southern  States,  in 
which  the  institution  of  slavery  existed,  felt  of  excluding  free  negroes 
from  their  limits.  As  in  some  States  negroes  were  citizens,  the  right  to 
exclude  them  from  the  Slave  States  could  only  be  maintained  by  the  as- 
sertion of  a power  to  exclude  all  persons  whom  they  might  deem  dan- 
gerous or  injurious  to  their  interests.  But  at  this  day  no  such  power 
would  be  asserted,  or  if  asserted,  allowed  in  any  Federal  Court.  And 
the  most  serious  consequences  affecting  the  relations  of  the  nation  with 
other  countries  might,  and  undoubtedly  would,  follow  from  any  attempt 
at  its  exercise.  Its  maintenance  would  enable  any  State  to  involve  the 
nation  in  war,  however  disposed  to  peace  the  people  at  large  might  be. 

“ Where  the  evil  a|3prehended  by  the  State  from  the  ingress  of  for- 
eigners is  that  such  foreigners  will  disregard  the  laws  of  the  State,  and 
thus  he  injurious  to  its  peace,  the  remedy  lies  in  the  more  vigorous  en- 


390 

forcement  of  the  laws,  not  in  the  exclusion  of  the  parties.  Gambling  is 
considered  by  most  States  to  be  injurious  to  the  morals  of  their  people, 
and  is  made  a public  offence.  It  would  hardly  be  considered  as  a legiti- 
mate exercise  of  the  police  power  of  the  States  to  prevent  a foreigner 
who  had  been  a gambler  in  his  own  country  from  landing  in  ours.  If, 
after  landing,  he  pursues  his  former  occupation,  fine  him,  and,  if  he  per- 
sists in  it,  imprison  him,  and  the  evil  will  he  remedied.  In  some  States 
the  manufacture  and  sale  of  spirituous  and  intoxicating  liquors  are  for- 
bidden and  punished  as  a misdemeanor.  If  the  foreigner  coming  to  our 
shores  is  a manufacturer  or  dealer  in  such  liquors,  it  would  be  deemed 
an  illegitimate  exercise  of  the  police  power  to  exclude  him,  on  account 
of  his  calling,  from  the  State.  The  remedy  against  any  apprehended 
manufacture  and  sale  would  lie  in  such  case  in  the  enforcement  of  the 
penal  laws  of  the  State.  So  if  lewd  women,  or  lewd  men,  even  if  the 
latter  be  of  that  baser  sort,  who,  when  Paul  preached  at  Thessalonica, 
set  all  the  city  in  an  uproar,  (Acts  xvii.,  verse  5,)  land  on  our  shores,  the 
remedy  against  any  subsequent  lewd  conduct  on  their  part  must  be 
found  in  good  laws,  or  good  municipal  regulations  and  a vigorous  police. 

“ It  is  evident  that  if  the  possible  violation  of  the  laws  of  the  State- 
by  an  emigrant,  or  the  supposed  immorality  of  his  past  life  or  profession, 
where  that  immorality  has  not  already  resulted  in  a conviction  for  a 
felony,  is  to  determine  his  right  to  land  and  to  reside  in  the  State,  or 
to  pass  through  into  other  and  interior  States,  a door  will  be  opened  to 
all  sorts  of  oppression.  The  doctrine  now  asserted  by  counsel  for  the 
Commissioner  of  Immigration,  if  maintained,  would  certainly  be  invoked, 
and  at  no  distant  day,  when  other  parties,  besides  low  and  despised  Chi- 
nese women,  are  the  subjects  of  its  application,  and  would  then  be  seen 
to  be  a grievous  departure  from  principle. 

“ I am  aware  of  the  very  general  feeling  prevailing  in  this  State  against 
the  Chinese,  and  in  opposition  to  the  extension  of  any  encouragement  to 
their  immigration  hither.  It  is  felt  that  the  dissimilarity  in  physical 
characteristics,  in  language,  in  manners,  religion,  and  habits,  will  always 
prevent  any  possible  assimilation  of  them  with  our  people.  Admitting 
that  there  is  ground  for  this  feeling,  it  does  not  justify  any  legislation 
for  their  exclusion,  which  might  not  be  adopted  against  the  inhabitants 
of  the  most  favored  nations  of  the  Caucasian  race,  and  of  Christain  faith. 
If  their  further  immigration  is  to  be  stopped,  recourse  must  be  had  to 
the  Federal  Government,  where  the  whole  power  over  this  subject  lies. 
The  State  cannot  exclude  them  arbitrarily,  nor  accomplish  the  same  end 
by  attributing  to  them  a possible  violation  of  its  municipal  laws.  It  is 
certainly  desirable  that  all  levvdness,  especially  when  it  takes  the  form 
of  prostitution,  should  be  suppressed,  and  that  the  most  stringent  meas- 
ures to  accomplish  that  end  should  be  adopted.  But  I have  little  respect 
for  that  discriminating  virtue  which  is  shocked  when  a frail  child  of 
China  is  landed  on  our  shores,  and  yet  allows  the  bedizened  and  painted 
harlot  of  other  countries  to  parade  our  streets  and  open  her  hells  in  broad 
day,  without  molestation  and  without-  censure, 


-391 


l'  By  the  5th  article  of  the  treaty  between  the  United  States  and  China, 
adopted  on  the  28th  of  July,  1868,  the  United  States  and  the  Emperor 
of  China  recognize  the  inherent  and  inalienable  right  of  man  to  change 
his  home  and  allegiance,  and  also  the  mutual  advantage  of  the  free  mi- 
gration and  emigration  of  their  citizens  and  subjects  respectively  from 
the  one  country  to  the  other,  for  purposes  of  curiosity,  of  trade,  or  as  per- 
manent residents.  The  6th  article  declares  that  citizens  of  the  United 
States  visiting  or  residing  in  Chi.  i shall  enjoy  the  same  privileges,  im- 
munities, or  exemptions  in  respect  to  travel  or  residence  as  may  there  be 
enjoyed  by  citizens  or  subjects  of  the  most  favored  nation.  And,  recip- 
rocally, that  Chinese  subjects  visiting  or  residing  in  the  United 
States  shall  enjoy  the  same  privileges,  immunities,  and  exemptions  in  re- 
spect to  travel  or  residence  as  may  there  be  enjoyed  by  citizens  or  sub- 
jects of  the  most  favored  nation. 

“ The  only  limitation  upon  the  free  ingress  into  the  United  States  and 
egress  from  them  of  subjects  of  China  is  the  limitation  which  is  applied  to 
citizens  or  subjects  of  the  most  favored  nation  ; and  as  the  General  Gov- 
ernment has  not  seen  fit  to  attach  any  limitation  to  the  ingress  of  sub- 
jects of  those  nations,  none  can  be  applied  to  the  subjects  of  China.  And 
the  power  of  exclusion  by  the  State,  as  we  have  already  said,  extends 
only  to  convicts,  lepers  and  persons  incurably  diseased,  and  to  paupers 
and  persons  who,  from  physical  causes,  are  likely  to  become  a public 
charge.  The  detention  of  the  petitioner  is,  therefore,  unlawful  under 
the  treaty. 

“ But  there  is  another  view  of  this  case  equally  conclusive  for  the  dis- 
charge of  the  petitioner,  which  is  founded  upon  the  legislation  of  Con- 
gress since  the  adoption  of  the  Fourteenth  Amendment.  That  amend- 
ment in  its  first  section  designates  who  are  citizens  of  the  United  States, 
and  then  declares  that  no  State  shall  make  or  enforce  any  law  which 
abridges  their  privileges  and  immunities.  It  also  enacts  that  no  State 
shall  deprive  any  person  (dropping  the  distinctive  designation  of  citizens) 
of  life,  liberty,  or  property  without  due  process  of  law ; nor  deny  to  any 
person  the  equal  protection  of  the  laws.  The  great  fundamental  rights 
of  all  citizens  are  thus  secured  against  any  State  deprivation,  and  all  per- 
sons, whether  native  or  foreign,  high  or  low,  are,  whilst  within  the  juris- 
diction of  the  United  States,  entitled  to  the  equal  protection  of  the  laws. 
Discriminating  and  partial  legislation,  favoring  particular  persons,  or 
against  particular  persons  of  the  same  class,  is  now  prohibited.  Equality 
of  privilege  is  the  constitutional  right  of  all  citizens,  and  equality  of  pro- 
tection is  the  constitutional  right  of  all  persons.  And  equality  of  protection 
implies  not  only  equal  accessibility  to  the  Courts  for  the  prevention  or  re- 
dress of  wrongs  and  the  enforcement  of  rights,  but  equal  exemption,  with 
others  of  the  same  class,  from  all  charges  and  burdens  of  every  kind. 
Within  these  limits  the  power  of  the  State  exists,  as  it  did  previously  to 
the  adoption  of  the  amendment,  over  all  matters  of  internal  police.  And 
within  these  limits  the  act  of  Congress  of  May  31st,  1870,  restricts  the 
action  of  the  State  with  respect  to  foreigners  immigrating  to  our  country. 


' No  tax  or  charge,’  says  the  act, 1 shall  be  imposed  or  enforced  by  any  State 
upon  any  person  immigrating  thereto  from  a foreign  country  which  is  not 
equally  imposed  or  enforced  upon  every  person  immigrating  to  such  State 
from  any  other  foreign  country,  and  any  law  of  any  State  in  conflict  with 
this  provision  is  hereby  declared  null  and  void.’ — (16  Statutes  at  Large, 
144.) 

“ By  the  term  chari/e,  as  here  used,  is  meant  any  onerous  condition,  it 
being  the  evident  intention  of  the  act  to  prevent  any  such  condition  from 
being  imposed  upon  any  person  immigrating  to  the  country,  which  is  not 
equally  imposed  upon  all  other  immigrants,  at  least  upon  all  others  of 
the  same  class.  It  was  passed  under  and  accords  with  the  spirit  of  the 
Fourteenth  Amendment.  A condition  which  makes  the  right  of  the  im- 
migrant to  land  depend  upon  the  execution  of  a bond  by  a third  party, 
not  under  his  control  and  whom  he  cannot  constrain  by  any  legal  proceed- 
ings, and  whose  execution  of  the  bond  can  only  be  obtained  upon  such 
terms  as  he  may  exact,  is  as  onerous  as  any  charge  which  can  well  be  im- 
posed, and  must,  if  valid,  generally  lead,  as  in  the  present  case,  to  the  ex- 
clusion of  the  immigrant. 

“ The  statute  of  California,  which  we  have  been  considering,  imposes 
this  onerous  condition  upon  persons  of  particular  classes  on  their  arrival 
in  the  ports  of  the  State  by  vessel,  but  leaves  all  other  foreigners  of  the 
same  classes  entering  the  State  in  any  other  way,  by  land  from  the  British 
possessions  or  Mexico,  or  over  the  plains  by  railway,  exempt  from  any 
charge.  The  statute  is,  therefore,  in  direct  conflict  with  the  act  of  Con- 
gress. 

“ It  follows  from  the  views  thus  expressed,  that  the  petitioner  must  be 
discharged  from  further  restraint  of  her  liberty  ; and  it  is  so  ordered.” 

The  other  twenty  persons  of  the  twenty-one  were  also 
discharged  immediately  upon  the  rendition  of  this  decision. 
Of  the  twenty-two  who  had  been  before  the  Supreme  Court 
of  the  State,  one  did  not  apply  to  the  Circuit  Court,  but  ap- 
pealed from  the  decision  refusing  her  discharge  to  the  Su- 
preme Court  of  the  United  States.  Her  case  came  before 
that  Court  under  the  title  of  Chy  Lung  vs.  Freeman,  and 
was  decided  at  the  October  Term  in  1875. — (2  Otto,  276.) 

The  judgment  of  the  Supreme  Court  of  the  State  was 
unanimously  reversed,  accompanied  with  indignant  con- 
demnation of  the  statute  of  California. 

Said  Mr.  Justice  Miller,  speaking  for  the  Court: 

“ It  is  hardly  possible  to  conceive  a statute  more  skillfully  framed,  to 
place  in  the  hands  of  a single  man  the  power  to  prevent  entirely  vessels 
engaged  in  a foreign  trade,  say  with  China,  from  carrying  passengers,  oi  to 
compel  them  to  submit  to  systematic  extortion  of  the  grossest  kind. 


393 


‘‘The  Commissioner  has  blit  to  go  aboard  a vessel  filled  with  passengers 
ignorant  of  our  language  and  our  laws,  and  without  trial  or  hearing  or 
evidence,  but  from  the  external  appearances  of  persons  with  whose  former 
habits  he  is  unfamiliar,  to  point  with  his  finger  to  twenty,  as  in  this 
case,  or  a hundred  if  he  chooses,  and  say  to  the  master,  these  are  idiots, 
these  are  paupers,  these  are  convicted  criminals,  and  these  are  lewd 
women,  and  these  others  are  debauched  women.  I have  here  a hun- 
dred blank  forms  of  bonds,  printed.  I require  you  to  fill  me  up  and  sign 
each  of  these  for  $500  in  gold,  and  that  you  furnish  me  two  hundred 
different  men,  residents  of  this  State,  and  of  sufficient  means,  as  sureties 
on  these  bonds.  I charge  you  five  dollars  in  each  case  for  preparing  the 
bond  and  swearing  your  sureties,  and  I charge  you  seventy-five  cents  each 
for  examining  these  passengers,  and  all  others  you  have  on  board.  If 
you  don't  do  this  you  are  forbidden  to  land  your  passengers  under  a 
heavy  penalty. 

“ But  I have  the  power  to  commute  with  you  for  all  this  for  any  sum  I 
may  choose  to  take  in  cash.  I am  open  to  an  offer,  but  yon  must  remem- 
ber that  twenty  per  cent,  of  all  I can  get  out  of  you  goes  into  my  own 
pocket,  and  the  remainder  into  the  treasury  of  California 

“ Individual  foreigners,  however  distinguished  at  home  for  their  social, 
their  literary,  or  their  political  character,  are  helpless  in  the  presence  of 
this  potent  Commissioner.  Such  a person  may  offer  to  furnish  any  amount 
of  surety  on  his  own  bond,  or  deposit  any  sum  of  money,  but  the  law  of 
California  takes  no  note  of  him.  It  is  the  master,  owner,  or  consignee  of 
the  vessel  alone  whose  bond  can  be  accepted.  And  so  a silly,  an  obsti- 
nate, or  a wicked  Commissioner,  may  bring  disgrace  upon  the  whole 
country,  the  enmity  of  a powerful  nation,  or  the  loss  of  an  equally  pow- 
erful friend. 

“ While  the  occurrence  of  the  hypothetical  case  just  stated  may  be 
highly  improbable,  we  venture  the  assertion  that  if  citizens  of  our  own 
government  were  treated  by  any  foreign  nation  as  subjects  of  the  Em- 
peror of  China  have  been  actually  treated  under  this  law,  no  Admin- 
istration could  withstand  the  call  for  a demand  on  such  government  for 
redress. 

“Or,  if  this  plaintiff  and  her  twenty  companions  bad  been  subjects  of 
the  Queen  of  Great  Britain,  can  any  one  doubt  that  this  matter  would 
have  been  the  subject  of  international  inquiry,  if  not  of  a direct  claim 
for  redress  ? Upon  whom  would  such  a claim  be  made  ? Not  upon  the 
State  of  California,  for  by  our  Constitution  she  can  hold  no  exterior  rela- 
tions with  other  nations.  It  would  be  made  upon  the  government  of 
the  United  States.  If  that  government  should  get  into  a difficulty  which 
would  lead  to  war  or  to  suspension  of  intercourse,  would  California  alone 
suffer,  or  all  the  Union  ? If  we  should  conclude  that  a pecuniary  indem- 
nity was  proper  as  a satisfaction  for  the  injury,  would  California  pay  it, 
or  the  Federal  Government?  If  that  government  has  forbidden  the 
Stales  to  hold  negotiations  with  any  foreign  nations,  or  to  declare  war, 


394 


and  has  taken  the  whole  subject  of  these  relations  upon  herself,  has  the 
Constitution,  which  provides  for  this,  done  so  foolish  a thing  as  to  leave 
it  in  the  power  of  the  States  to  pass  laws  whose  enforcement  renders  the 
General  Government  liable  to  just  reclamations  which  it  must  answer, 
while  it  does  not  prohibit  to  the  States  the  acts  for  which  it  is  held  re- 
sponsible ? 

“ The  Constitution  of  the  United  States  is  no  such  instrument.  The 
passage  of  laws  which  concern  the  admission  of  citizens  and  subjects  of 
foreign  nations  to  our  shores  belongs  to  Congress  and  not  to  the  States. 
It  has  the  power  to  regulate  commerce  with  foreign  nations;  the  respon- 
sibility for  the  character  of  those  regulations  and  the  manner  of  their 
execution  belongs  solely  to  the  National  Government.  If  it  be  otherwise, 
a single  State  can  at  her  pleasure  embroil  us  in  disastrous  quarrels  with 
other  nations. 

“ We  are  not  called  upon  by  this  statute  to  decide  for  or  against  the 
right  of  a State,  in  the  absence  of  legislation  by  Congress,  to  protect  her- 
self by  necessary  and  proper  laws  against  paupers  and  convicted  crimi- 
nals from  abroad,  nor  to  lay  down  the  definite  limit  of  such  right,  if  it 
exist.  Such  a right  can  only  arise  from  a vital  necessity  for  its  exercise, 
and  cannot  be  carried  beyond  the  scope  of  that  necessity.  When  a State 
statute,  limited  to  provisions  necessary  and  appropriate  to  that  object 
alone,  shall  in  a proper  controversy  come  before  us,  it  will  be  time  enough 
to  decide  that  question.  The  statute  of  California  goes  so  far  beyond 
what  is  necessary  or  even  appropriate  for  this  purpose,  as  to  be  wholly 
without  any  sound  definition  of  the  right  under  which  it  is  supposed  to 
be  justified 

“ The  money  when  paid  does  not  go  to  any  fund  for  the  benefit  of  im- 
migrants, but  is  paid  into  the  general  treasury  of  the  State  and  devoted 
to  the  use  of  all  her  indigent  citizens.  The  blind,  or  the  deaf,  or  the 
dumb  passenger  is  subject  to  contribution,  whether  he  be  a rich  man  or 
a pauper.  The  patriot  seeking  our  shores,  after  an  unsuccessful  struggle 
against  despotism  in  Europe  or  Asia,  may  be  kept  out  because  there  his 
resistance  has  been  adjudged  a crime.  The  woman  whose  error  has  been 
repaired  by  a happy  marriage  and  numerous  children,  and  whose  loving 
husband  brings  her  with  his  wealth  to  a new  home,  may  be  told  she  must 
pay  around  sum  before  she  can  land,  because  it  is  alleged  that  she  was 
debauched  by  her  husband  before  marriage.  AVhether  a.  young  woman’s 
manners  are  such  as  to  justify  the  Commissioner  in  calling  her  lewd  may 
be  made  to  depend  on  the  sum  she  will  pay  for  the  privilege  of  landing 
in  San  Francisco. 

“ It  is  idle  to  pursue  the  criticism.  In  any  view 'which  we  can  take  of 
this  statute  it  is  in  conflict  with  the  Constitution  of  the  United  States, 
and,  therefore,  void.” 

The  legislation  of  the  city  of  San  Francisco  against  the 
Chinese  has  been  equal  to  that  of  the  State,  and  much, 
more  offensive  in  its  character. 


In  July,  1870,  an  ordinance  of  the  city  and  county  was 
passed  regulating  lodging-houses.  Section  one  required 
that  every  house,  room,  or  apartment,  except  of  prisons, 
occupied  as  a lodging,  in  which  persons  lived  or  slept, 
should  contain  within  the  walls  of  such  house,  room,  or 
apartment,  at  least  five  hundred  cubic  feet  of  air  for  each 
adult  person  dwelling  or  sleeping  therein ; and  that  any 
owner  or  tenant  of  a house,  room,  or  apartment,  who 
should  lodge  or  permit  to  be  lodged  in  such  room  or  apart- 
ment more  than  one  person  to  every  five  hundred  cubic 
feet  of  air,  should  be  deemed  guilty  of  a misdemeanor, 
and  for  every  offence  should  be  fined  not  less  than  ten  nor 
more  than  five  hundred  dollars,  or  be  imprisoned  in  the 
city  prison  not  less  than  five  days  nor  more  than  three 
months,  or  be  punished  both  by  such  fine  and  imprison- 
ment. The  ordinance  also  imposed  the  same  penalty  on 
each  occupant  of  any  such  room  or  apartment. 

In  May,  1873,  a large  number  of  Chinese  in  San  Fran- 
cisco were  arrested  under  this  ordinance,  and  a fine  often 
dollars  inflicted  on  each  of  them.  The  parties  fined  in 
most  cases  preferred  to  go  to  jail  rather  than  to  pay  the 
fine.  B}-  a law  of  the  State  an  imprisonment  for  one  day 
works  a discharge  of  a fine  to  the  amount  of  two  dollars. 
Of  this  action  of  the  Chinese,  the  Evening  Bulletin,  a lead- 
ing journal  of  San  Francisco,  thus  speaks  in  its  edition  of 
May  22,  1873: 

“ Chinese  Obstinacy. 

“ The  Mongols  have  determined  upon  the  policy  of  worrying  the  au- 
thorities in  their  attempt  to  enforce  the  ordinance  prohibiting  the  un- 
wholesome crowding  of  lodging-houses,  in  the  hope  of  rendering  the  ef- 
fort futile. 

“ The  large  gang  brought  up  and  fined  on  Tuesday,  with  the  re-in- 
forceinents  to-day,  have  completely  filled  the  prison  accommodations. 
And  if  the  crusade  is  continued,  the  cattle  pound,  or  some  other  spacious 
enclosure,  will  have  to  be  utilized  for  their  confinement.  A few  were  in- 
clined to  pay  the  fines  imposed,  but  were  prevented  from  doing  so  by  the 
commands  of  the  leading  men  in  the  Chinese  quarter,  who  declared,  in 
substance,  that  they  would  make  the  city  sick  of  prosecuting  and  main- 
taining Chinamen  in  prison,  under  this  ordinance.” 


396 


There  was  a good  deal  of  difficulty  in  enforcing  the  or- 
dinance, on  account  of  the  number  of  Chinese  who  vio- 
lated it,  and  their  omission  to  pay  the  fines  imposed. 
They  were  arrested  in  great  numbers,  and  packed  in  cells 
where  they  had  not  100  feet  of  cubic  air  to  the  person. 
They  over-crowded  the  jails,  and  it  was  thought  necessary 
by  the  authorities  of  the  city  to  adopt  a policy  which  would 
compel  them  to  pay  their  fines  and  at  the  same  time  pre- 
vent the  immigration  of  others  of  their  countrymen. 
Accordingly,  on  the  25th  May,  1873,  three  ordinances 
were  introduced  in  the  Board,  having  this  object  in  view. 

One  of  the  ordinances  provided  that  every  male  per- 
son imprisoned  in  the  county  jail,  in  pursuance  of  a 
judgment  or  conviction  of  the  Police  Court  of  the  city 
and  county,  should,  immediately  upon  his  arrival  at 
the  jail,  have  the  hair  of  his  head  cut  or  clipped  to  a 
uniform  length  of  one  inch  from  the  scalp.  Another  of 
the  ordinances  provided  that  no  person  should  remove  or 
cause  to  he  removed,  from  any  cemetery  or  grave-yard 
within  the  limits  of  the  city  and  county,  the  remains  of 
any  deceased  person  or  persons  there  placed  or  disposed, 
without  the  written  permit  of  the  coroner  of  the  city  and 
county.  The  third  of  the  ordinances  imposed  a license- 
tax  of  fifteen  dollars  a quarter  upon  keepers  of  laundries 
or  laundry  offices,  or  wash-houses,  who  employed  no  ve- 
hicle drawn  by  animal  power. 

Of  two  of  these  ordinances  the  Evening  Bulletin  of  May 
27,  1873,  said  as  follows  : 

“It  is  generally  known that  to  deprive  a Chinaman  of  his 

queue  is  to  humiliate  him  as  deeply  as  is  possible. 

“ It  is  also  very  generally  known,  that  the  bones  of  no  Chinaman  are 
permitted  to  remain  in  a foreign  land,  and  that  all  Chinese,  before  leaving 
their  country,  feel  assured  that,  after  death,  no  matter  where  they  die, 
their  bones  will  be  taken  back  to  mingle  with  their  native  sod. 

“ So  strict  are  all  Chinese  on  these  two  points,  that  it  is  believed,  if 
they  were  prevented  from  wearing  their  tails  here,  and  if  after  death 
their  bones  were  denied  transportation  to  their  native  land,  the  immi- 
gration of  this  superstitious  people  would  be  effectually  stopped,  and  a 
reflux  commence  from  our  shores  to  the  Flowery  Kingdom.” 


And  in  its  edition  of  June  2d,  1873,  the  Bulletin  had  the 
following  article  upon  one  of  the  ordinances: 

" The  Supervisors  on  Hair  Cutting. 

“ The  Board  of  Supervisors  have  passed  to  print  an  ordinance  requiring 
the  cropping  of  the  hair  of  every  person  who  is  serving  a term  in  the 
jail  under  a criminal  conviction.  The  ordinance,  while  it  nominally  makes 
no  discrimination  as  to  race  or  condition,  is  aimed  specially  at  the  Chinese.  The 
enforcement  of  the  sanitary  ordinance  against  the  over-crowding  of  Chinese 
is  just,  and  ought  to  be  certain.  But  it  should  he  enforced  lawfully.  The 
Chinese  go  to  jail,  in  most  cases,  rather  than  pay  the  line.  The  readiness 
to  be  fed  and  lodged  for  a week  or  more,  at  the  public  expense,  extracts 
all  the  real  penalty  there  is  in  the  sanitary  law.  Five  hundred  or  a 
thousand  Chinese  going  willingly  to  jail,  and  rather  liking  the  opportu- 
nity for  free  board  and  lodging,  quite  superior  to  their  own  miserable  ac- 
commodations, presents  a new  phase  of  the  question.  The  judgment  has 
no  penalty.  The  Chinese  who  offend  against  the  ordinance  refuse  to  pay  the 
line,  but  go  to  jail  and  board  it  out.  The  Supervisors,  casting  about  for 
some  means  of  relief,  have  hit  upon  the  plan  of  cropping  the  hair.  White 
criminals  would  care  nothing  about  this,  and  the  ordinance  would  prob- 
ably never  be  enforced  against  them.  The  loss  of  a pigtail  is  a great 
calamity  to  the  Chinese.  It  is  his  national  badge  of  honor.  If  it  is  cut 
olf,  he  is  maimed.  He  will  not  venture  home  without  it,  and  Becomes  a 
fixture  from  very  necessity.  The  sanitary  regulations  enforced  in  this 
way  is  a kind  of  boomerang,  which  comes  back  with  telling  effect.” 

The  queue-cutting  ordinance  and  the  laundry  ordinance 
were  both  passed,  but  they  were  both  vetoed  by  Mayor 
Alford  of  the  city,  and  his  action  received  the  general 
approval  of  the  Press  of  the  State  and  of  the  country 
generally.  In  Ins  message  vetoing  the  Queue  Orninance 
he  stated  that  its  manifest  motive  was  to  inflict  upon  the 
persons  of  Chinese  convicted  of  misdemeanors  a punish- 
ment which,  in  their  estimation,  was  shameful  and  de- 
grading, and  that,  in  his  judgment,  minor  offences  which 
do  not  belong  to  the  class  of  crimes  called  infamous 
should  not  be  punished  by  penalties,  which  inflicted  dis- 
grace upon  the  person  of  the  offender. 

On  the  3d  of  April,  1876,  the  Legislature  of  the  State 
passed  an  act  entitled  “ An  act  concerning  lodging-houses 
and  sleeping-apartments  within  the  limits  of  incorporated 
cities,”  in  which  it  provided  that  any  person  or  persons 


found  sleeping  or  lodging,  or  hired  or  used  for  the  purpose 
of  sleeping,  any  room  or  apartment  which  contained  less 
than  five  hundred  cubic  feet  of  space  in  the  clear,  every 
such  person,  so  keeping  such  room  or  apartment,  should  be 
deemed  guilty  of  a misdemeanor  and  should  be  punished 
by  a fine  of  not  less  than  ten  nor  more  than  fifty  dollars, 
or  by  both  fine  and  imprisonment.  In  June  afterwards, 
the  Board  of  Supervisors  of  the  city  and  county  of  San 
Francisco,  took  up  and  passed  anew  the  old  vetoed  queue- 
cutting  ordinance.  It  was  introduced  by  Supervisor  Gibbs, 
who  stated  that  it  was  necessary  to  resort  to  this  mode  of 
treatment  to  compel  the  payment  of  the  fines  imposed 
upon  the  Chinese,  and  for  that  purpose  it  was  passed  by  a 
vote  of  ten  to  two,  and  approved  by  the  then  mayor.  It 
was  believed  that  the  dread  of  the  loss  of  his  queue  would 
compel  every  Chinaman  to  pay  the  fine  rather  than  to  go 
to  jail. 

Under  this  ordinance,  a Chinaman,  by  the  name  of  Ah 
Ivow,  was  sentenced  to  pay  a fine  of  ten  dollars,  and  in  de- 
fault to  be  imprisoned  in  the  county  jail.  Failing  to  pay 
his  fine,  he  was  arrested,  and  on  being  taken  to  the  jail 
the  Sheriff  cut  oft'  his  queue. 

For  this  treatment  he  sued  the  Sheriff,  setting  forth  his 
conviction  under  the  act  of  the  Legislature,  and  the  treat- 
ment to  which  he  was  subjected,  and  the  injury  and  suffer- 
ing he  had  endured,  and  asked  damages.  To  this  com- 
plaint the  Sheriff  answered  justifying  his  act  under  the 
ordinance  of  the  city.  To  this  answer  the  plaintiff  demur- 
red. The  particulars  of  the  complaint  and  answer  are 
more  fully  stated  in  the  opinion  delivered  by  Judge  Field 
in  overruling  the  demurrer,  which  is  as  follows  : 

“Ah  Kow  vs.  Noonan. 

“ The  plaintiff  is  a subject  of  the  Emperor  of  China,  and  the  present 
action  is  brought  to  recover  damages  for  his  alleged  maltreatment  by 
the  defendant,  a citizen  of  the  State  of  California  and  the  Sheriff  of  the 
city  and  county  of  San  Francisco.  The  maltreatment  consisted  in  hav- 
ing wantonly  and  maliciously  cut  off  the  queue  of  the  plaintiff,  a queue 


399 


being  worn  by  all  Chinamen,  and  its  deprivation  being  regarded  by  them 
as  degrading  and  as  entailing  future  suffering. 

*'  It  appears  that  in  April,  1876,  the  Legislature  of  California  passed  an 
act  ‘concerning  lodging-houses  and  sleeping-apartments  within  the  limits 
of  incorporated  cities,’  declaring,  among  other  things,  that  any  person 
found  sleeping  or  lodging  in  a room  or  an  apartment  containing  less  than 
five  hundred  cubic  feet  of  space  in  the  clear  for  each  person  occupying 
it,  should  be  deemed  guilty  of  a misdemeanor,  and  on  conviction  thereof 
be  punished  by  a fine  of  not  less  than  ten  or  more  than  fifty  dollars,  or 
imprisonment  in  the  county  jail,  or  by  both  such  fine  and  imprisonment.* 
Lender  this  act  the  plaintiff,  in  April,  1876,  was  convicted  and  sentenced 
to  pay  a fine  of  ten  dollars,  or  in  default  of  such  payipent  to  be  impris- 
oned five  days  in  the  county  jail.  Failing  to  pay  the  fine,  he  was  im- 
prisoned. The  defendant,  as  sheriff’  of  the  city  and  county,  had  charge 
of  the  jail,  and  during  the  imprisonment  of  the  plaintiff"  cut  off  his 
queue,  as  alleged.  The  complainant  avers,  that  it  is  the  custom  of  China- 
men to  shave  the  hair  from  the  front  of  the  head  and  to  wear  the  re- 
mainder of  it  braided  into  a queue ; that  the  deprivation  of  the  queue  is 
regarded  by  them  as  a mark  of  disgrace,  and  is  attended,  according  to 
their  religious  faith,  with  misfortune  and  suffering  after  death  ; that  the 
defendant  knew  of  this  custom  and  religious  faith  of  the  Chinese,  and 
knew  also  that  the  plaintiff  venerated  the  custom  and  held  the 
faith  ;f  yet,  in  disregard  of  his  rights,  inflicted  the  injury  complained  of; 
and  that  the  plaintiff  has,  in  consequence  of  it,  suffered  great  mental 
anguish,  bec-n  disgraced  in  the  eyes  of  his  friends  and  relatives,  and 
ostracised  from  association  with  his  countrymen;  and  that  hence  he  has 
been  damaged  to  the  amount  of  §10,000. 

“ Two  defences  to  the  action  are  set  up  by  the  defendant ; the  second 
one  being  a justification  of  his  conduct  under  an  ordinance  of  the  city 
and  county  of  San  Francisco.  It  is  upon  the  sufficiency  of  the  latter  de- 
fence that  the  case  is  before  us.  The  ordinance  referred  to  was  passed 
on  the  14th  day  of  June,  1876,  and  it  declares  that  every  male  person 
imprisoned  in  the  county  jail,  under  the  judgment  of  any  Court  having 
jurisdiction  in  criminal  cases  in  the  city  and  county,  shall  immediately 
upon  his  arrival  at  the  jail  have  the  hair  of  his  head  ‘cut  or  clipped  to 
an  uniform  length  of  one  inch  from  the  scalp  thereof,’  and  it  is  made  the 
duty  of  the  sheriff  to  have  this  provision  enforced.  Under  this  ordinance 
the  defendant  cut  off  the  queue  of  the  plaintiff 


* Session  Laws  of  1875-6,  p.  759. 

t It  has  been  suggested  that  this  averment  of  the  complaint  is  not  in 
point  of  fact  strictly  accurate ; and  that,  according  to  the  belief  of  the 
Chinamen,  the  loss  of  the  queue  is  only  evidence  of  previous  bad  charac- 
ter, and  as  such  may  affect  his  future  condition,  not  necessarily.  It  is 
not  perceived  that  this  statement,  if  correct,  alters  in  any  respect  the 
argument  of  the  opinion.  The  loss  of  his  queue  is  the  cause  of  reproach 
and  degradation  to  him. 


400 


“The  validity  of  this  ordinance  is  denied  by  the  plaintiff  on  two 
grounds:  1st,  that  it  exceeds  the  authority  of  the  Board  of  Supervisors, 
the  body  in  which  the  legislative  power  of  the  city  and  county  is  vested; 
and  2d,  that  it  is  special  legislation  imposing  a degrading  and  cruel  pun- 
ishment upon  a class  of  persons  who  are  entitled,  alike  with  all  other 
persons  within  the  jurisdiction  of  the  United  States,  to  the  equal  protec- 
tion of  the  laws.  We  are  of  the  opinion  that  both  of  these  positions  are 
well  taken. 

“ The  Board  of  Supervisors  is  limited  in  its  authority  by  the  act  con- 
solidating the  government  of  the  city  and  county.  It  can  do  nothing  un- 
less warrant  he  found  for  it  there,  or  in  a subsequent  statute  of  the  State. 
As  with  all  other  ipnnicipal  bodies,  its  charter — here  the  Consolidation 
Act — is  the  source  and  measure  of  its  powers.  In  looking  at  this  charter, 
we  see  that  the  powers  of  the  Board,  and  the  subjects  upon  which  they 
are  to  operate,  are  all  specified.  The  Board  has  no  general  powers,  and 
its  special  power  to  determine  the  lines,  forfeitures,  and  penalties  which 
may  be  incurred,  is  limited  to  two  classes  of  cases : 1st,  breaches  of  regula- 
tions established  by  itself;  and  2d,  violations  of  provisions  of  the  Consoli- 
dation Act,  where  no  penalty  is  provided  by  law.  It  can  impose  no  pen- 
alty in  any  other  case  ; and  when  a penalty  other  than  that  of  fine  or  for- 
feiture is  impSed,  it  must,  by  the  terms  of  the  act,  be  in  the  form  of  im- 
prisonment. It  can  take  no  other  form.  ‘ No  penalty  to  be  imposed,’  is 
the  language  used,  ‘ shall  exceed  the  amount  of  one  thousand  dollars,  or 
six  months  imprisonment,  or  both.’  The  mode  in  which  a penalty  can 
be  inflicted,  and  the  extent  of  it,  are  thus  limited  in  defining  the  power 
of  the  Board.  In  their  place  nothing  else  can  be  substituted.  No  one, 
for  example,  would  pretend  that  the  Board  could,  for  any  breach  of  a mu- 
nicipal regulation  or  any  violation  of  the  Consolidation  Act,  declare  that 
a man  should  be  deprived  of  his  right  to  vote,  or  to  testify,  or  to  sit  on  a 
jury,  or  that  he  should  be  punished  with  stripes,  or  be  ducked  in  a pond, 
or  be  paraded  through  the  streets,  or  be.  seated  in  a pillory,  or  have  his 
ears  cropped,  or  his  head  shaved. 

“ The  cutting  off  the  hair  of  every  male  person  within  an  inch  of  his 
scalp,  on  his  arrival  at  the  jail,  was  not  intended  and  cannot  be  main- 
tained as  a measure  of  discipline  or  as  a sanitary  regulation.  The  act  by 
itself  has  no  tendency  to  promote  discipline,  and  can  only  be  a measure 
of  health  in  exceptional  cases.  Had  the  ordinance  contemplated  a mere 
sanitary  regulation,  it  would  have  been  limited  to  such  cases  and  made 
applicable  to  females  as  well  as  to  males,  and  to  persons  awaiting  trial  as 
well  as  to  persons  under  conviction.  The  close  cutting  of  the  hair  which 
is  practiced  upon  inmates  of  the  State  Penitentiary,  like  dressing  them  in 
striped  clothing,  is  partly  to  distinguish  them  from  others,  and  thus  prevent 
their  escape,  and  facilitate  their  recapture.  They  are  measures  of  precau- 
tion, as  well  as  parts  of  a general  system  of  treatment  prescribed  by  the 
Directors  of  the  Penitentiary  under  the  authority  ol'the  State,  for  parties 
convicted  of  and  imprisoned  for  felonies.  Nothing  of  the  kind  is  prescribed 


401 


ov  would  be  tolerated  with  respect  to  persons  confined  in  a county  jail 
for  simple  misdemeanors,  most  of  which  are  not  of  a very  grave  character. 
For  the  discipline  or  detention  of  the  plaintiff  in  this  case,  who  had  the 
option  of  paying  a tine  of  ten  dollars,  or  of  being  imprisoned  for  five  days, 
no  such  clipping  of  the  hair  was  required.  It  was  done  to  add  to  the  se- 
verity of  his  punishment. 

“ But  even  if  the  proceeding  could  be  regarded  as  a measure  of  discip- 
line, or  as  a sanitary  regulation,  the  conclusion  would  not  help  the  de- 
fendant, for  the  Board  of  Supervisors  had  no  authority  to  prescribe  the 
discipline  to  which  persons  convicted  under  the  laws  of  the  State  should 
he  subjected,  or  to  determine  what  special  sanitary  regulations  should  be 
enforced  with  respect  to  their  persons.  That  is  a matter  which  the  Leg- 
islature had  not  seen  fit  to  intrust  to  the  wisdom  and  judgment  of  that 
body.  It  is  to  the  Board  of  Health  of  the  city  and  county  that  a gen- 
eral supervision  of  all  matters  ajipertaining  to  the  sanitary  condition  of 
the  county  jail  is  confided  ; and  only  in  exceptional  cases  would  the  pre- 
servation of  the  health  of  the  institution  require  the  cutting  of  the  hair 
of  any  of  its  inmates  within  an  inch  of  his  scalp.*  The  claim,  however, 
put  forth,  that  the  measure  was  prescribed  as  one  of  health,  is  noto- 
riously a mere  pretence.  A treatment  to  which  disgrace  is  attached,  and 
which  is  not  adopted  as  a means  of  security  against  the  escape  of  the 
prisoner,  but  merely  to  aggravate  the  severity  of'  his  confinement,  can 
only  be  regarded' as  a punishment  additional  to  that  fixed  by  the  sen- 
tence. If  adopted  in  consequence  of  the  sentence,  it  is  punishment  in 
addition  to  that  imposed  by  the  Court ; if  adopted  without  regard  to  the 
sentence,  it  is  wanton  cruelty. 

“In  the  present  case  the  plaintiff  was  not  convicted  of  any  breach  of 
a municipal  regulation,  nor  of  violating  any  provision  of  the  consolida- 
tion act.  The  punishment  which  the  Supervisors  undertook  to  add  to 
the  fine  imposed  by  the  Court  was  without  semblance  of  authority.  The 
Legislature  had  not  conferred  upon  them  the  right  to  change  or  add  to 
the  punishments  which  it  deemed  sufficient  for  offences;  nor  had  it  be- 
stowed upon  them  the  right  to  impose  in  any  case  a punishment  of  the 
character  inflicted  in  this  case.  They  could  no  more  direct  that  the  queue 
of  the  plaintiff  should  be  cut  off  than  that  the  punishments  mentioned 
should  be  inflicted.  Hor  could  they  order  the  hair  of  any  one,  Mongo- 
lian or  other  person,  to  be  clipped  within  an  inch  of  his  scalp.  That 
measure  was  beyond  their  power. 

“ The  second  objection  to  the  ordinance  in  question  is  equally  conclu- 
sive. It  is  special  legislation,  on  the  part  of  the  Supervisors,  against  a 
class  of  persons  w:ho,  under  the  Constitution  and  laws  of  the  LTnited 
States,  are  entitled  to  the  equal  protection  of  the  laws.  The  ordinance 
was  intended  only  for  the  Chinese  in  San  Francisco.  This  was  avowed 
by  the  Supervisors  on  its  passage,  and  w7as  so  understood  by  every  one. 


*Act  of  April  4.  1870;  Session  Laws  of  1869-70.  p.  717. 


402 


The  ordinance  is  known  in  the  community  as  the  ‘Queue  Ordinance,’ 
being  so  designated  from  its  purpose  to  reach  the  queues  of  the  Chinese, 
and  it  is  not  enforced  against  any  other  persons.  The  reason  advanced 
for  its  adoption,  and  now  urged  for  its  continuance,  is  that  only  the  dread 
of  the  loss  of  his  queue  will  induce  a Chinaman  to  pay  his  fine.  That 
is  to  say,  in  order  to  enforce  the  payment  of  a fine  imposed  upon  him,  it 
is  necessary  that  torture  should  be  supefadded  to  imprisonment.  Then, 
it  is  said,  the  Chinaman  will  not  accept  the  alternative,  which  the  law 
allows,  of  working  out  his  fine  by  imprisonment,  and  the  State  or  county 
will  be  saved  the  expense  of  keeping  him  during  his  imprisonment. 
Probably  the  bastinado,  or  the  knout,  or  the  thumbscrew,  or  the  rack, 
would  accomplish  the  same  end  ; and  no  doubt  the  Chinaman  would  pre- 
fer either  of  these  inodes  of  torture  to  that  which  entails  upon  him  dis- 
grace among  his  countrymen  and  carries  with  it  the  constant  dread  of 
misfortune  and  suffering  after  death.  It  is  not  creditable  to  the  human- 
ity and  civilization  of  our  people,  much  less  to  their  Christianity,  that 
an  ordinance  of  this  character  was  possible. 

“ The  class  character  of  this  legislation  is  none  the  less  manifest  be- 
cause of  the  general  terms  in  which  it  is  expressed.  The  statements  of 
Supervisors  in  debate  on  the  passage  of  the  ordinance,  cannot,  it  is  true, 
be  resorted  to  for  the  purpose  of  explaining  the  meaning  of  the  terms 
used  ; but  they  can  be  resorted  to  for  the  purpose  of  ascertaining  the  gen- 
eral object  of  the  legislation  proposed,  and  the  mischiefs  sought  to  be 
remedied.  Besides,  we  cannot  shut  our  eyes  to  matters  of  public  noto- 
riety and  general  cognizance.  When  we  take  our  seats  on  the  bench  we 
are  not  struck  with  blindness,  and  forbidden  to  know  as  judges  what  we 
see  as  men  ; and  where  an  ordinance,  though  general  in  its  terms,  only 
operates  upon  a special  race,  sect,  or  class,  it  being  universally  understood 
that  it  is  to  be  enforced  only  against  that  race,  sect,  or  class,  we  may 
justly  conclude  that  it  was  the  intention  of  the  body  adopting  it  that  it 
should  only  have  such  operation,  and  treat  it  accordingly.  We  may  take 
notice  of  the  limitation  given  to  the  general  terms  of  an  ordinance  by  its 
practical  construction  as  a fact  in  its  history,  as  we  do  in  some  cases  that 
a law  has  practically  become  obsolete.  If  this  were  not  so,  the  most  im- 
portant provisions  of  the  Constitution,  intended  for  the  security  of  per- 
sonal rights,  would,  by  the  general  terms  of  an  enactment,  often  be 
evaded  and  practically  annulled. — ( Brown  vs.  Piper , 1 Otto,  42  ; Ohio  Live 
Ins.  and  Trust  Company  vs.  Dehnlt,  16  How.,  435;  Scott  vs.  Sandford,  1!)  Id., 
407.)  The  complaint  in  this  case  shows  that  the  ordinance  acts  with 
special  severity  upon  Chinese  prisoners,  inflicting  upon  them  suffering 
altogether  disproportionate  to  what  would  be  endured  by  other  prisoners 
if  enforced  against  them.  Upon  the  Chinese  prisoners  its  enforcement 
operates  as  ‘a  cruel  and  unusual  punishment.’ 

“ Many  illustrations  might  be  given  where  ordinances,  general  in  their 
terms,  would  operate  only  upon  a special  class,  or  upon  a class  with  ex- 
ceptional severity,  and  thus  incur  the  odium  and  be  subject  to  the  legal 


403 


objection  of  intended  hostile  legislation  against  them.  We  have,  for  in- 
stance, in  our  community,  a large  number  of  Jews.  They  are  a highly 
intellectual  race,  and  are  generally  obedient  to  the  laws  of  the  country. 
But,  as  is  well  known,  they  have  peculiar  opinions  with  respect  to  the  use 
of  certain  articles  of  food,  which  they  cannot  be  forced  to  disregard  with- 
out extreme  pain  and  suffering.  They  look,  for  example,  upon  the  eat- 
ing of  pork  with  loathing.  It  is  an  offence  against  their  religion,  and  is 
associated  in  their  minds  with  uncleanness  and  impurity.  Now,  if  they 
should,  in  some  quarter  of  the  city,  overcrowd  their  dwellings,  and  thus 
become  amenable,  like  the  Chinese,  to  the  act  concerning  lodging-houses 
and  sleeping-apartments,  an  ordinance  of  the  Supervisors  requiring  that 
all  prisoners  confined  in  the  county  jail  should  be  fed  on  pork,  would  be 
seen  by  every  one  to  be  leveled  at  them  ; and,  notwithstanding  its  gen- 
eral terms,  would  be  regarded  as  a special  law  in  its  purpose  and  opera- 
tion. 

“ During  various  periods  of  English  history,  legislation,  general  in  its 
character,  has  often  been  enacted  with  the  avowed  purpose  of  imposing 
special  burdens  and  restrictions  upon  Catholics ; but  that  legislation  has 
since  been  regarded  as  not  less  odious  and  obnoxious  to  animadversion 
than  if  the  persons  at  whom  it  was  aimed  had  been  particularly  desig- 
nated. 

“ But,  in  our  country,  hostile  and  discriminating  legislation  by  a State 
against  persons  of  any  class,  sect,  creed,  or  nation,  in  whatever  form  it 
may  be  expressed,  is  forbidden  by  the  Fourteenth  Amendment  of  the 
Constitution.  That  amendment  in  its  first  section  declares  who  are  citi- 
zens of  the  United  States,  and  then  enacts  that  no  State  shall  make  or 
enforce  any  law  which  shall  abridge  their  privileges  and  immunities.  It 
further  declares  that  no  State  shall  deprive  any  person  (dropping  the  dis- 
tinctive term  citizen)  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  the  equal  protection  of  the  laws.  This 
inhibition  upon  the  State  applies  to  all  the  instrumentalities  and  agen- 
cies employed  in  the  administration  of  its  government  ; to  its  execu- 
tive, legislative,  and  judicial  departments;  and  to  the  subordinate  legis- 
lative bodies  of  counties  and  cities.  And  the  equality  of  protection  thus 
assured  to  every  one  whilst  within  the  United  States,  from  whatever 
country  he  may  have  come,  or  of  whatever  race  or  color  he  may  be,  im- 
plies not  only  that  the  Courts  of  the  country  shall  be  open  to  him  on  the 
same  terms  as  to  all  others,  for  the  security  of  his  person  or  property, 
the  prevention  or  redress  of  wrongs,  and  the  enforcement  of  contracts ; 
but  that  no  charges  or  burdens  shall  be  laid  upon  liim  which  are  not 
equally  borne  by  others,  and  that  in  the  administration  of  criminal  jus- 
tice he  shall  suffer  for  his  offences  no  greater  or  different  punishment. 

“Since  the  adoption  of  the  Fourteenth  Amendment,  Congress  has  leg- 
islated for  the  purpose  of  carrying  out  its  provisions  in  accordance  with 
these  views.  The  Revised  Statutes,  re-enacting  provisions  of  law  passed 
in  1870,  declare  that  ‘all  persons  within  the  jurisdiction  of  the  United 

27 


States  shall  have  the  same  right  in  every  State  and  Territory  to  make 
and  enforce  contracts,  to  sue,  he  parties,  give  evidence,  and  to  the  full 
and  equal  benefit  of  all  laws  and  proceedings  for  the  security  of  persons 
and  property,  as  is  enjoyed  by  white  citizens,  and  shall  be  subject  to  like 
punishment,  pains,  penalties,  taxes,  licenses,  and  exactions  of  every  kind, 
and  to  no  other.' — (Sec.  1,977.)  They  also  declare,  that  ‘every  person 
who,  under  color  of  any  statute,  ordinance,  regulation,  custom,  or  usage 
of  any  State  or  Territory,  subjects,  or  causes  to  be  subjected,  any  citizen 
of  the  United  States,  or  other  person  within  the  jurisdiction  thereof,  to 
the  deprivation  of  any  rights,  privileges,  or  immunities  secured  by  the 
Constitution  and  laws,  shall  be  liable  to  the  party  injured  in  an  action  at 
law,  suit  in  equity,  or  other  proper  proceeding  for  redress.’ — (Sec.  1,979.) 

“ It  is  certainly  something  in  which  a citizen  of  the  United  States  may 
feel  a generous  pride  that  the  government  of  his  country  extends  protec- 
tion to  all  persons  within  its  jurisdiction  ; and  that  every  blow  aimed  at 
any  of  them,  however  humble,  come  from  what  quarter  it  may,  is 
1 caught  upon  the  broad  shield  of  our  blessed  Constitution  and  our  equal 
laws.’  * 

“ We  are  aware  of  the  general  feeling — amounting  to  positive  hos- 
tility— prevailing  in  California  against  the  Chinese,  which  would  prevent 
their  further  immigration  hither,  and  expel  from  the  State  those  already 
here.  Their  dissimilarity  in  physical  characteristics,  in  language,  man- 
ners, and  religion,  would  seem,  from  past  experience,  to  prevent  the  pos- 
sibility of  their  assimilation  with  our  people.  And  thoughtful  persons, 
looking  at  the  millions  which  crowd  the  opposite  shores  of  the  Pacific, 
and  the  possibility  at  no  distant  day  of  their  pouring  over  in  vast  hordes 
among  us,  giving  rise  to  fierce  antagonisms  of  race,  hope  that  some  way 
may  be  devised  to  prevent  their  further  immigration.  We  feel  the  force 
and  importance  of  these  considerations  ; but  the  remedy  for  the  appre- 
hended evil  is  to  be  sought  from  the  General  Government,  where,  except 
in  certain  special  cases,  all  power  over  the  subject  lies.  To  that  govern- 
ment belong  exclusively  the  treaty-making  power,  and  the  power  to  reg- 
ulate commerce  with  foreign  nations,  which  includes  intercourse  as  well 
as  traffic,  and,  with  the  exceptions  presently  mentioned,  the  power  to  pre- 
scribe the  conditions  of  immigration  or  importation  of  persons.  The 
State  in  these  particulars,  with  those  exceptions,  is  powerless,  and  noth- 
ing is  gained  by  the  attempted  assertion  of  a control  which  can  never  be 
admitted.  The  State  may  exclude  from  its  limits  paupers  and  convicts 
of  other  countries,  persons  incurably  diseased,  and  others  likely  to  be- 
come a burden  upon  its  resources.  It  may,  perhaps,  also  exclude  persons 
whose  presence  would  be  dangerous  to  its  established  institutions.  But 
there  its  power  ends.  Whatever  is  done  by  way  of  exclusion  beyond 
this  must  come  from  the  General  Government.  That  goverment  alone 
can  determine  what  aliens  shall  be  permitted  to  land  within  the  United 


* Judge  Black’s  argument  in  the  Fossgt  Case,  2 Wallace,  p.  703, 


405 


States,  and  upon  what  conditions  they  shall  he  permitted  to  remain  ; 
whether  they  shall  he  restricted  in  business  transactions  to  such  as  ap- 
pertain to  foreign  commerce,  as  is  practically  the  case  with  our  people  in 
China;  or  whether  they  shall  be  allowed  to  engage  in  all  pursuits  equally 
with  citizens.  For  restrictions  necessary  or  desirable  in  these  matters, 
the  appeal  must  be  made  to  the  General  Government ; and  it  is  not  be- 
lieved that  the  appeal  will  ultimately  be  disregarded.  Be  that  as  it  may, 
nothing  can  be  accomplished  in  that  direction  by  hostile  and  spiteful 
legislation  on  the  part  of  the  State,  or  of  its  municipal  bodies,  like  the 
ordinance  in  question — legislation  which  is  unworthy  of  a brave  and 
manly  people.  Against  such  legislation  it  will  always  be  the  duty  of  the 
judiciary  to  declare  and  enforce  the  paramount  law  of  the  nation. 

“ The  plaintiff  must  have  judgment  on  the  demurrer  to  the  defendant’s 
plea  of  justification  ; and  it  is  so  ordered.” 


This  decision  raised  a storm  of  abuse  against  its  author. 
It  seemed  as  though,  for  the  time,  reason  had  fled  from 
the  minds  of  the  people  of  the  State.  It  was  not  enough 
for  them  that  the  Judge  was  equally  opposed  to  the  im- 
migration of  Chinese,  believing,  as  he  did,  that  it  was  not 
wdse  that  persons  should  be  encouraged  to  come  to  the 
country  who,  by  their  habits,  religion,  language,  and  man- 
ners, could  not  assimilate  readily  with  our  people;  that 
the  presence  of  such  a class  would  necessarily  engender 
enmities  and  conflicts,  disturbing  to  the  peace  and  injuri- 
ous to  the  prosperity  of  the  country.  They  wanted  him 
to  disregard  the  Constitution  of  the  United  States  and  the 
provisions  of  the  treaty  with  China,  and  hold  that  the 
State  was  supreme  in  all  matters  affecting  the  Chinese. 
It  is  enough  to  say  that  the  Judge  would  have  deserved 
the  reproach  of  all  good  men  had  he  listened  to  such  wild 
and  senseless  clamor. 

During  the  same  year  a new  Constitution  for  the  State 
had  been  adopted.  The  members  of  the  Convention, 
who  framed  it,  had  been  elected  under  the  excitement 
existing  at  the  time  against  the  Chinese,  and  they  seemed 
to  think  that  all  obstacles  to  the  hostile  legislation  would 
be  removed  if  authority  for  it  was  expressed  in  the  organic 
law.  Accordingly,  the  instrument  adopted  is  filled  with 


40(J 


clauses  leveled  against  the  people  of  the  hated  race,  show- 
ing a determination  to  exclude  them  from  the  State  at  all 
hazards,  without  regard  to  treaty  stipulations  with  their 
country  or  inhibitions  of  the  Constitution  of  the  United 
States.  Provisions  of  various  kinds  are  found  in  it,  ex- 
hibiting ignorance  of  the  plainest  doctrines  of  political 
economy  as  well  as  of  public  and  constitutional  law. 
Hostility  to  capital  and  to  the  Chinese  appears  to  have 
been  the  ruling  principle  of  the  Convention,  and  the  ex- 
clusion of  both  from  the  State  its  object — of  the  former 
by  onerous  taxation,  and  of  the  latter  by  cutting  off  the 
means  of  livelihood.  The  Nineteenth  Article  contained 
the  following  provision  : 

“ Section  2.  No  corporation  now  existing,  or  hereafter  formed  under 
the  laws  of  this  State,  shall  after  the  adoption  of  this  Constitution  em- 
ploy directly  or  indirectly,  in  any  capacity,  any  Chinese  or  Mongolians. 
The  Legislature  shall  pass  such  laws  as  may  be  necessary  to  enforce  this 
provision. 

“ Section  3.  No  Chinese  shall  be  employed  on  any  State,  county,  mu- 
nicipal, or  other  public  work,  except  in  punishment  for  crime. 

“ Section  4.  The  presence  of  foreigners  ineligible  to  become  citizens  of 
the  United  States  is  declared  to  be  dangerous  to  the  well-being  of  this 
State,  and  the  Legislature  shall  discourage  their  immigration  by  all  the 
means  within  its  power.” 

Under  this  article  the  first  Legislature  which  assembled 
under  the  newr  Constitution  added  to  the  penal  code  of 
the  State  the  following  sections: 

“ 178.  Any  officer,  director,  manager,  member,  stockholder,  clerk, 
agent,  servant,  attorney,  employe,  assignee,  or  contractor  of  any  corpora- 
tion now  existing,  or  hereafter  formed  under  the  laws  of  this  State,  who 
shall  employ,  in  any  manner  or  capacity,  upon  any  work  or  business  of 
such  corporation,  any  Chinese  or  Mongolian,  is  guilty  of  a misdemeanor, 
and  is  punishable  by  a fine  of  not  less  than  one  hundred  nor  more  than 
one  thousand  dollars,  or  by  imprisonment  in  the  county  jail  of  not  less 
than  fifty  nor  more  than  five  hundred  days,  or  by  both  such  fine  and  im- 
prisonment ; Provided,  That  no  director  of  a corporation  shall  be  deemed 
guilty  under  this  section  who  refuses  to  assent  to  such  employment,  and 
has  such  dissent  recorded  in  the  minutes  of  the  board  of  directors. 

“1.  Every  person  who,  having  been  convicted  of  violating  the  provi- 
sions of  this  section,  commits  any  subsequent  violation  thereof  after  such 
conviction,  is  punishable  as  follows: 


407 


“ 2.  For  each  subsequent  conviction  such  person  shall  he  fined  not  less 
than  five  hundred  nor  more  than  five  thousand  dollars,  or  by  imprison- 
ment not  less  than  two  hundred  and  fifty  days  nor  more  than  two  years, 
or  by  both  such  fine  and  imprisonment. 

“ 179.  Any  corporation  now  existing,  or  hereafter  formed  under  the 
laws  of  this  State,  that  shall  employ,  directly  or  indirectly,  in  any  ca- 
pacity, any  Chinese  or  Mongolian,  shall  be  guilty  of  a misdemeanor,  and 
upon  conviction  thereof  shall  for  the  first  offence  be  fined  not  less  than 
five  hundred  nor  more  than  five  thousand  dollars,  and  upon  the  second 
conviction  shall,  in  addition  to  said  penalty,  forfeit  its  charter  and  fran- 
chise, and  all  its  corporate  rights  and  privileges,  and  it  shall  be  the  duty 
of  the  Attorney-General  to  take  the  necessary  steps  to  enforce  such  for- 
feiture.” 

As  this  law  went  into  effect  immediately,  some  corpora- 
tions dissolved,  others  resisted  its  enforcement.  The  presi- 
dent of  one  of  them — the  Sulphur  Bank  Quicksilver  Mining 
Company,  organized  under  the  laws  of  the  State — was  ar- 
rested and  held  to  answer  before  a State  Court,  upon  a com- 
plaint setting  forth  the  offence  of  employing  in  the  busi- 
ness of  the  corporation  certain  Chinese  citizens  of  the  Mon- 
golian race.  He  thereupon  sued  out  a writ  of  habeas  cor- 
pus in  the  Circuit  Court  of  the  United  States.  That  Court, 
Sawyer,  the  Circuit  Judge,  and  Huffman , the  District 
Judge,  sitting,  held  the  law  invalid,  and  discharged  him 
from  arrest.  Both  of  the  judges  delivered  very  elaborate 
and  able  opinions.  They  showed  by  clear  and  unanswerable 
reasoning,  that  the  law  in  question  was  in  conflict  with  the 
treaty  with  China  and  the  Fourteenth  Amendment  of  the 
Constitution;  that  the  privileges  and  immunities  pledged 
to  the  Chinese’hy  the  treaty,  guaranteed  to  them  the  right 
to  labor,  and  to  pursue  any  lawful  business  equally  with 
the  subjects  of  the  most  favored  nation ; and  that  the  power 
to  repeal  and  amend  acts  of  incorporation,  reserved  to 
the  Legislature  by  the  Constitution  of  the  State,  did  not 
authorize  it  to  require  corporations  to  exclude  from  em- 
ployment persons  who  were  thus  protected  by  treaty  stip- 
ulations. As  said  by  Judge  Hoffman,  if  the  provisions 
of  the  law  were  enforced,  a bank  or  a railroad  company 
would  “ lose  the  right  to  employ  a Chinese  interpreter 


408 


to  enable  it  to  communicate  with  Chinese  with  whom  it 
does  business.  A hospital  association  would  be  unable  to 
employ  a Chinese  servant  to  make  known,  or  to  minister 
to,  the  wants  of  a Chinese  patient,  and  even  a society  for 
the  conversion  of  the  heathen  would  not  be  allowed  to 
employ  a Chinese  con  vert  to  interpret  the  gospel  to  Chinese 
neophytes.” 

The  judge  was  of  opinion  that  the  legislation,  under  the 
guise  of  amendment  or  alteration,  was  merely  an  attempt 
to  drive  the  Chinese  from  the  State  by  preventing  them 
from  laboring  for  their  livelihood,  and  he  thought  that  no 
enumeration  would  “ be  attempted,  of  the  privileges,  im- 
munities, and  exemptions  of  the  most  favored  nation,  or 
even  of  man  in  civilized  society,  which  would  exclude  the 
right  to  labor  for  a living.” 

u It  is  as  inviolable,”  he  added,  “ as  the  x’ight  of  property, 
for  property  is  the  offspring  of  labor.  It  is  as  sacred  as 
the  right  to  life,  for  life  is  taken  if  the  means  whereby  we 
live  be  taken.  Had  the  labor  of  the  Irish  or  Germans 
been  similarly  proscribed,  the  legislation  would  have  en- 
countered a storm  of  just  indignation.  The  right  of  per- 
sons of  those  or  other  nationalities,  to  support  themselves 
by  their  labor,  stands  on  no  other  or  higher  ground  than 
of  the  Chinese.  The  latter  have  even  the  additional  ad- 
vantage afforded  by  the  express  and  solemn  pledge  of  the 
Hation.” 

The  judge  concluded  his  opinion  by  observing,  what 
was  generally  felt  to  be  true,  “ that  the  unrestricted  immi- 
gration of  the  Chinese  to  this  country  is  a great  and  grow- 
ing evil.  That  it  presses  with  much  severity  on  the  labor- 
ing classes,  and  that  if  allowed  to  continue  in  numbers 
bearing  any  considerable  proportion  to  that  of  the  teem- 
ing  population  of  the  Chinese  Empire,  it  will  be  a menace 
to  our  peace  and  even  to  our  civilization,  is  an  opinion 
entertained  by  most  thoughtful  persons.  The  demand, 
therefore,  that  the  treaty  shall  be  rescinded  or  modified  is 


400 


reasonable  and  legitimate.”*  “ But,”  he  added,  “ while 
that  treaty  exists,  the  Chinese  have  the  same  rights  of 
immigration  and  residence  as  are  possessed  by  any  other 
foreigners.  Those  rights  it  is  the  duty  of  Courts  to  main- 
tain and  of  the  Government  to  enforce.” 

The  opinion  of  Judge  Sawyer  was  equally  clear  and 
emphatic  in  its  condemnation  of  the  law  of  the  State. 
Both  opinions  will  appear  in  6tli  Sawyer’s  Reports  under 
the  title  of  the  case,  “ In  Re  Tiburcio  Parrott,  on  Habeas 
Corpus.” 

Xothing  could  better  exhibit  the  unreasonable  character 
of  the  legislation  of  the  State  than  the  illustration  above 
given.  It  was  the  offspring  of  ignorance,  and  of  a spite- 
fulness which  always  over-leaps  its  mark  and  defeats 
itself. 


Other  Cases  in  the  Circuit  Court. 

A great  many  other  cases  of  interest  have  been  decided 
by  the  Circuit  Court  whilst  Judge  Field  presided,  but  only 
a few  of  them  have  been  reported.  In  much  the  larger 
number  merely  an  oral  opinion  has  been  given  by  him, 
briefly  recapitulating  the  grounds  of  the  decision.  Of  the 
reported  cases,  other  than  those  from  which  the  quotations 
above  are  made,  the  following  may  be  named  as  the  most 
important  : 

Central  Pacific  Railroad  Co.  vs.  Dyer,  1 Sawyer,  643. 

Cole  Silver  Mining  Co.  vs.  Virginia  & Gold  Hill  Mining 
Co.,  1 Ibid.,  685. 

Galpin  vs.  Page,  3 Ibid.,  93. 

Patterson  vs.  Tatum,  3 Ibid.,  164. 


* The  treaty  with  China  has  since  been  modified,  so  as  to  admit  of 
legislation  by  Congress  restricting  the  immigration  of  Chinese  to  this 
country.  The  power  which  Congress  always  possessed  can  now  be  exer- 
cised without  a breach  of  the  treaty. 


410 


Leroy  vs.  Jamison,  3 Ibid.,  370. 

Leroy  vs.  Wright,  4 Ibid.,  530. 

Norton  vs.  Meador,  4 Ibid.,  603. 

Gray  vs.  Lammore,  4 Ibid.,  638. 

United  States  vs.  Hare,  4 Ibid.,  653. 

Nicholson  Pavement  Co.  vs.  Hatch,  4 Ibid.,  692. 
Grisar  vs.  McDowell,  4 Ibid.,  597. 

Gimrny  vs.  Culverson,  5 Ibid.,  605. 

The  Ship  Harriman,  5 Ibid.,  611. 

United  States  vs.  Outerbridge,  5 Ibid.,  620. 

In  Re  Frank  McCoppin,  5 Ibid..  630. 


-til 


THE  ELECTORAL  COMMISSION  OF  1877.  * 


Any  notice  of  the  judicial  labors  of  Justice  Field  would 
be  incomplete  which  failed  to  include  his  action  as  a 
member  of  the  Electoral  Commission  created  for  count- 
ing the  Presidential  vote  of  1876.  Although  the  history 
of  that  memorable  tribunal,  and  the  circumstances  which 
led  to  its  creation,  are  probably  familiar  to  most  readers, 
it  may  not  he  amiss  briefly  to  recapitulate  thefli. 

On  the  morning  of  the  Presidential  election  held  No- 
vember 7th,  1876,  it  was  announced  and  generally  con- 
ceded that  Samuel  J.  Tilden,  the  Democratic  candidate,  had 
secured  a majority  of  the  Electoral  College.  The  total 
number  of  electors  composing  it  was  369,  of  whom  203 
favorable  to  him,  and  166  favorable  to  the  Republican 
candidate,  Rutherford  B.  Hayes,  had  received  a majority 
of  the  popular  vote  of  their  States.  In  the  number  for 
Mr.  Tilden,  however,  were  included  four  electors  from 
Florida,  eight  from  Louisiana,  and  seven  from  South  Caro- 
lina. If  these  nineteen  votes  could  be  taken  from  Mr. 
Tilden’s  column  and  added  to  that  of  Mr.  Hayes,  the  lat- 
ter would  have  a majority  of  one.  Some  of  the  leaders 
of  the  Republican  party,  therefore,  determined  to  originate 
a contest  in  these  States,  for  which  peculiar  facilities  were 


* This  article  was  prepared  by  John  T.  Doyle,  Esq.,  of  San  Fran- 
cisco, a distinguished  member  of  the  Bar  of  California.  In  the  note  on 
page  259,  there  is  a mistake  in  designating  the  Commission  as  of  1876. 
It  was  created  by  the  act  of  Congress  approved  January  29th,  1877. 


412 


afforded  by  the  fact  that  in  them  the  canvassing  of  the 
votes  and  declaration  of  the  result  were  confided  to  “ re- 
turning boards,”  a majority  of  whose  members  were  not 
only  of  the  same  party,  but  were  political  adventurers, 
wholly  without  character.  On  the  other  hand,  among  the 
electors  chosen  in  the  States,  which  had  been  fairly  car- 
ried by  the  Republicans,  there  were  several  who,  by  hold- 
ing a Federal  office,  or  otherwise,  were  ineligible  for  the 
position.  So  that  the  slenderness  of  the  majority  for  Mr. 
Hayes  (even  supposing  his  partisans  successful  in  their  ef- 
fort to  count  for  him  the  votes  of  the  returning-board 
States)  rehdered  it  necessary  for  them  to  retain  also  the 
votes  of  all  these  ineligible  electors.  The  Democrats, 
therefore,  in  turn,  contested  the  election  of  the  latter. 

When  the  movements  of  the  Republican  leaders  first 
intimated  a design  to  attempt  to  count  the  votes  of  the 
returning-board  States  for  their  candidate,  in  the  face  of 
notorious  popular  majorities,  people  refused  to  credit  the 
suggestion.  The  rumors  on  the  subject  were,  by  most 
persons,  regarded  as  merely  sensational,  and  intended  at 
most  to  effect  some  other  purpose.  But  when  President 
Grant  invited  a large  number  of  prominent  Republicans 
to  visit  those  States,  and  act  as  voluntary  Supervisors  of 
the  count;  when  these  gentlemen,  all  pronounced  parti- 
sans of  the  Republican  candidate,  took  upon  themselves 
this  supervision,  and  in  carrying  it  out  refused  to  act  in 
concert  with  a committee  of  citizens  equally  distinguished, 
chosen  by  their  opponents;  and  when  they,  with  a single 
exception,  gave  their  countenance  and  sanction  to  flagrant 
violations  of  the  local  law  by  the  returning  boards,  it  be- 
came too  clear  to  doubt  that  an  attempt  was  to  be  made 
to  overrule  the  popular  vote,  and  by  means  of  fraudulent 
devices,  to  confer  the  Presidency  on  a candidate  who  had 
been  defeated  at  the  polls.  The  success  of  such  a scheme 
did  indeed  at  first  appear  incredible,  and  most  persons 
looked  forward  to  seeing  justice  attained  by  the  ordinary 
processes.  But  meantime  the  returning  boards  went  on, 


413 


and,  after  various  preliminary  violations  of  law,  proceeded 
by  methods  now  conceded  by  their  own  partisans  to  be 
wholly  illegal  and  indefensible,  to  consummate  the  crime 
of  certifying  the  election  of  all  the  defeated  candidates. 

The  electors  actually  chosen,  but  counted  out  by  this 
process,  however,  met  and  voted  as  required  by  law,  and 
transmitted  certificates  of  their  votes  to  the  President  of 
the  Senate  in  Washington,  in  proper  form.  In  the  Re- 
publican States  where  the  Democrats  claimed  the  defeat 
of  particular  electors  on  the  ground  of  ineligibility,  pro- 
ceedings were  also  taken  to  question  their  votes,  and  thus 
the  final  count  of  the  electoral  vote  and  the  ascertainment 
of  the  result  of  the  election  presented  a series  of  judicial 
questions,  the  determination  of  each  one  of  which  vitally 
affected  the  result.  If  every  question  were  decided  in 
favor  of  the  Republicans  they  had  the  Presidency  by  a 
majority  of  one  electoral  vote.  The  decision  of  a single 
point  against  them  was  fatal  to  their  pretensions. 

What  tribunal  was  to  decide  these  tremendous  issues  ? 
Quis  tant.is  componere  lites  ? 

The  constitutional  provision  on  the  subject  was  ex- 
tremely  meagre.  “ The  President  of  the  Sernte  shall,  in 
1 presence  of  the  Senate  and  House  of  Representatives,  open 
1 all  the  certificates,  and  the  votes  shall  then  be  counted."  And 
there  was  no  statute  nor  even  a joint  rule  of  the  two 
Houses  providing  how  the  count  was  to  be  made  or  how 
any  disputed  question  which  arose  on  it  should  be  deter- 
mined. The  Republicans  put  forward  the  claim  that  the 
President  of  the  Senate  alone  had  the  power  to  determine 
what  were  and  what  were  not  the  genuine  electoral  votes, 
and  so,  practically,  to  judge  the  whole  question.  The  other 
side  contended  that  the  two  Houses  of  Congress  were  to 
count,  and  that,  therefore,  the  assent  of  both  was  neces- 
sary to  the  recognition  of  each  vote  claimed.  The  whole 
country  became  excited  on  the  question,  and  the  news- 
papers teemed  with  discussions  of  it.  The  records  of  all 
previous  Presidential  counts  were  ransacked  and  every 


414 


precedent  quoted;  but  none  could  be  claimed  as  decisive, 
for  the  contest  itself  was  without  precedent. 

The  House  of  Representatives  was  Democratic  hotli  nu- 
merically and  on  a count  by  States.  On  a failure  to  elect 
by  the  Colleges  it  would,  undoubtedly,  have  chosen  Mr. 
Tilden.  But  the  Congress  was  to  expire  and  the  House 
be  dissolved  on  the  fourth  of  March,  and  the  new  House, 
though  similarly  constituted,  would  not  assemble  until  the 
following  December.  Meantime  the  Senate  and  all  the 
Executive  Departments,  which  were  permanent  bodies, 
were  in  the  hands  of  the  Republicans,  and  the  Senate 
would  doubtless  elect,  and  the  Executive  Departments 
recognize,  Mr.  Hayes.  The  outgoing  President  was  ex- 
pected to  do  all  in  his  power  to  confirm  the  claim  by  in- 
ducting him  into  office  and  turning  over  to  him  all  the 
machinery  of  the  Executive  Government.  He  would  thus 
become  President  de  facto  with  a claimant  dejure  opposed, 
and  no  tribunal  to  decide  between  them,  no  law  applica- 
ble to  the  case,  and  to  all  appearances  no  appeal  possible 
except  to  the  sword. 

People  stood  aghast  at  the  magnitude  of  the  peril  be- 
fore them.  Treason  in  its  worst  form,  not  only  to  the  Re- 
public, but  to  all  Republican  government,  menaced  the 
very  life  of  the  Nation.  The  public  excitement  became 
intense;  rage  and  indignation  took  possession  of  men’s 
minds,  and  projects  for  resisting  fraud  by  violence,  and  of 
arming  large  bodies  of  men  to  march  on  Washington  and 
insist  on  a fair  count  by  the  two  Houses  of  Congress,  were 
freely  canvassed.  The  President,  on  the  other  hand,  con- 
centrated a military  force  at  the  Capital,  and  civil  war  in 
its  worst  form  seemed  imminent; — not  section  against  sec- 
tion, nor  State  against  State,  hut  neighbor  against  neigh- 
bor, throughout  every  State,  county,  and  village  in  the 
land. 

ITnder  these  circumstances  a Joint  Committee  of  the 
Senate  and  House  of  Representatives  devised,  and  on 
January  29th,  1877,  Congress  passed  a bill  creating  a com- 


415 


mission  of  fifteen  members, — five  Senators,  five  Represen- 
tatives, and  five  Judges  of  the  Supreme  Court, — to  whose 
adjudication  the  whole  subject  was  committed.  Justice 
Field  was  selected  as  one  of  the  last-named  members.* 

It  is  not  deemed  necessary  to  detail  the  particulars  of 
the  points  of  contest  in  each  of  the  cases  submitted.  They 
can  be  sufficiently  gathered  from  the  extracts  which  we 
make  from  his  opinions. 


The  Florida  Case. 

The  frauds  practiced  in  Florida  consisted  in  substituting, 
for  the  returns  of  certain  counties  regularly  made  up  by 
the  proper  officers  in  conformity  with  the  votes  legally 
cast,  other  returns  subsequently  prepared  by  different 
olficers,  in  which  a sufficient  number  of  the  votes  were 
thrown  out  to  change  the  result  in  the  State.  A state- 
ment of  the  proceedings  in  one  of  the  counties — Raker 
County — will  show  how  the  frauds  were  perpetrated. 

By  the  laws  of  the  State,  the  counties  were  divided  into 
polling  precincts,  and  the  votes  of  those  precincts  were  to 
be  returned  to  the  county  clerk,  at  the  county  seats,  where 
they  were  to  be  canvassed;  and  the  county  canvassers 
were  to  certify  the  result  to  the  State  canvassers.  The 
county  canvassers  were,  by  law,  the  county  judge,  the 
county  clerk,  (or  clerk  of  the  circuit  court  of  the  county,) 


* Justice  Field  had  always  expressed  the  opinion  that  it  was  the  duty 
of  the  two  Houses  of  Congress  to  meet  in  joint  convention  and  count 
the  votes,  and  if  they  could  not  agree  upon  the  votes  to  be  received,  so 
as  to  he  able  to  declare  who  were  elected  President  and  Vice-President, 
the  duty  would  then  devolve  upon  the  House  of  Representatives  to  elect 
the  President,  and  upon  the  Senate  to  elect  the  Vice-President.  He 
did  not,  therefore,  believe  in  the  necessity  of  any  commission,  but  was 
willing  to  act  as  one  of  its  members,  not  doubting,  for  a moment,  that 
it  would  go  behind  the  certificates  issued  by  the  Governors  of  the  disputed 
States,  and  determine,  not  who  had  received  them,  for  that  was  apparent 
on  their  face,  but  who  were  entitled,  as  electors,  to  receive  them. 


410 


and  a justice  of  the  peace,  to  be  called  in  by  them  for  their 
assistance.  Incase  either  the  judge  or  clerk  was  absent, 
or  could  not  attend,  the  sheriff  of  the  county  was  to  be 
called  in  his  place.  The  law  provided  that  the  canvass 
by  the  county  canvassers  should  be  on  the  sixth  day  after 
the  election,  or  sooner,  if  the  returns  were  all  received. 

In  Baker  County  there  were  but  four  precincts,  and  the 
returns  were  all  received  in  three  days.  On  the  10th  of 
November  the  county  clerk,  considering  that  the  returns 
were  in,  and  that  further  delay  in  the  canvass  might  be 
embarrassing,  requested  the  county  judge  to  join  in  the 
canvass.  The  county  judge  refused.  The  clerk  then  asked 
the  sheriff,  but  he  declined.  The  clerk  then  called  to  his 
assistance  a justice  of  the  peace,  and  made  the  canvass, 
which  was  a correct  one.  But  it  so  happened  that  the 
county  judge,  on  the  same  day — the  10th — issued  a notice 
to  the  county  clerk,  and  to  a justice  of  the  peace,  to  attend 
him  at  the  county  seat  on  the  13tli,  for  the  purpose  of 
making  the  count.  On  that  day  and  at  the  hour  named, 
the  county  clerk  and  the  justice  of  the  peace,  thus  re- 
quested, attended.  The  county  judge,  however,  absented 
himself.  He  was  invited  and  urged  to  go  on  with  the 
canvass,  but  he  declined  to  attend.  The  sheriff  was  then 
applied  to,  and  he  refused.  Thereupon  the  county  clerk 
and  a justice  of  the  peace  recanvassed  the  votes,  giving 
the  same  result  as  in  the  first  canvass,  and  so  certified  the 
same  to  the  State  canvassers,  stating  in  their  certificate  the 
reasons  why  neither  the  county  judge  nor  the  sheriff  was 
present.  The  office  of  the  clerk  was  then  closed  for  the 
day.  On  the  evening  of  that  day,  the  same  count}7  judge 
and  the  same  sheriff,  taking  to  their  assistance  a justice  of 
the  peace  who  had  been  commissioned  on  the  10th  by  the 
■Governor,  and  who  had  never  acted  before,  entered  the 
office  surreptitiously,  opened  a drawer  and  took  out  the  re- 
turns, threw  aside  two  precincts,  and  certified  the  two  re- 
maining, and  sent  the  certificate  to  the  State  canvassers. 
This  was  done  without  any  evidence  whatever  of  any  ille- 


417 


gality  or  irregularity  in  the  election  in  either  of  those 
precincts.  The  deposition  of  the  sheriff,  on  the  subject, 
was  taken;  and  he  testified  that  no  evidence  was  before 
them;  that  one  person  had  stated  that  he  had  been  pre- 
vented at  one  of  the  precincts  from  voting,  hut  gave  no 
proof  of  it;  and  as  to  the  other  precinct,  they  merely  be- 
lieved that  some  illegal  votes  had  been  given,  but  of  that 
no  proof  was  offered  to  them. 

When  the  State  canvassers  met  they  amended  the  can- 
vass by  counting  the  returns  from  all  the  precincts,  thus 
making  the  certificate  conform  to  the  actual  vote  cast. 
But  they  eliminated  from  the  returns  of  other  counties  a 
sufficient  number  to  equal  what  was  thus  returned  by  the 
true  certificate  of  Baker  County,  and  enough  to  give  the 
State  to  the  Hayes  electors.  At  that  time  Stearns  and 
Drew  were  candidates  for  the  office  of  governor  of  the 
State,  and  Drew  contested  the  legality  of  this  action,  so 
far  as  he  was  concerned.  The  Supreme  Court  of  the 
State,  before  which  the  question  was  carried,  held  that  the 
canvassers  had  no  right  to  eliminate  the  votes  from  the 
other  counties;  that  their  duty  was  ministerial,  which  was 
to  count  the  votes  properly  returned.  The  result  gave 
Drew  the  office  of  governor.  The  Sfate  canvassers,  see- 
ing this  result,  recalled  their  amendment  of  the  Baker 
County  canvass,  and  adopted  the  false  certificate  as  re- 
turned with  the  two  precincts  omitted.  This  was  done, 
as  without  it  the  convass  showed  a majority  for  the  elec- 
tors of  Mr.  Til  den. 

The  action  of  the  Courts  and  of  the  Legislature  of  the 
State,  to  correct  the  fraud  thus  perpetrated  by  the  can- 
vassers, will  appear  in  the  argument,  given  below,  of  Jus- 
tice Field. 

When  the  original  certificate  was  before  the  Commis- 
sion for  examination,  it  was  contended  that  Congress 
had  no  right  to  go  behind  it  and  count  the  votes  of  the 
electors  actually  chosen,  and  upon  this  question  Justice 
Field  said  as  follows: 


418 


“ Me.  President:  .... 

“ The  main  question  submitted  to  us,  the  one  to  which  all  other  in- 
quiries are  subordinate,  is,  whom  has  the  State  of  Florida  appointed  as 
electors  to  cast  her  vote  for  President  and  Vice-President  ? The  Electoral 
Act,  under  which  we  are  sitting,  makes  it  our  duty  to  decide  1 how  many 
and  what  persons  were  duly  appointed  electors  ’ iu  that  State. 

“ The  Constitution  declares  that  each  State  shall  appoint  electors  ‘ iu 
such  manner  as  the  Legislature  thereof  may  direct.’  It  fixes  the  num- 
ber to  be  appointed,  which  is  to  be  equal  to  the  whole  number  of  Sen- 
ators and  Representatives  to  which  the  State  may  be  entitled  in  Con- 
gress. It  declares  who  shall  not  be  appointed  ; that  is,  no  Senator  or 
Representative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States.  With  the  exception  of  these  provisions  as  to  the  num- 
ber of  electors  and  the  ineligibility  of  certain  persons,  the  power  of  choice 
on  the  part  of  the  State  is  unrestricted.  The  manner  of  appointment  is 
left  entirely  to  its  Legislature. 

“ What,  then,  was  the  manner  of  appointment  directed  by  the  Legisla- 
ture of  Florida  ? This  is  manifestly  a proper  subject  for  our  inquiry, 
for  if  another  and  different  manner  from  that  directed  by  the  Legislature 
has  been  followed  in  the  appointment  of  persons  as  electors,  such  persons 
are  not  ‘ duly  appointed  ’ in  the  State,  and  we  must  so  decide.  Any  sub- 
stantial departure  from  the  manner  prescribed  must  necessarily  vitiate 
the  whole  proceeding,  If,  for  example,  the  appointment  of  electors 
should  be  made  by  the  Governor  of  a State,  when  its  Legislature  had  di- 
rected that  they  should  be  chosen  by  the  qualified  voters  at  a general 
election,  the  appointment  would  be  clearly  invalid  and  have  to  be  re- 
jected. So,  too,  if  the  Legislature  should  prescribe  that  the  appointment 
should  be  made  by  a majority  of  the  votes  cast  at  such  election,  and  the 
canvassers,  or  other  officers  of  election,  should  declare  as  elected  those 
who  bad  received  only  a plurality  or  a minority  of  the  votes,  or  the 
votes  of  a portion  only  of  the  State,  the  declaration  would  be  equally  in- 
valid as  not  conforming  to  the  legislative  direction  ; and  the  appoint- 
ment of  the  parties  thus  declared  elected  could  only  be  treated  as  a 
nullity. 

“ In  inquiring  whether  the  manner  prescribed  by  the  State  has  been 
followed,  we  do  not  trench  upon  any  authority  of  the  State,  or  question 
in  any  respect  her  absolute  right  over  the  subject,  but,  on  the  contrary, 
we  seek  only  to  give  effect  to  her  will  and  ascertain  the  appointment  she 
has  actually  made. 

“What,  then,  was  the  manner  directed  by  the  Legislature  of  Florida? 
It  was  by  popular  election.  It  was  by  the  choice  of  a majority  of  the 
qualified  voters  of  the  State.  When  their  votes  were  cast  on  the  7th  of 
November,  the  electors  were  appointed,  and  all  that  remained  was  to  as- 
certain and  declare  the  result.  The  appointment  was  then  completed, 
and  could  not  afterward  be  changed.  What  subsequently  was  required 
of  the  officers  of  election  and  canvassing-boards  was  an  authentic  dec- 
laration of  the  result.” 


41!) 


Justice  Field  then  proceeded  to  show  that  the  duty  of 
the  State  canvassers  of  Florida  was  ministerial  and  not 
judicial — so  decided  by  the  Supreme  Court  of  the  State, 
quoting  from  its  opinion  to  that  effect;  that  it  was  their 
duty  to  certify  the  result  shown  by  the  returns  from  the 
county  canvassers;  and  that,  according  to  such  returns, 
the  certificates  of  the  State  board  should  have  been  given 
to  the  Tilden  electors,  and  not  to  the  Hayes  electors. 
And,  as  to  the  objection  taken,  that  the  certificates  issued 
by  the  Governor  of  the  State  to  the  Hayes  electors,  upon 
the  result  found  by  the  board  of  canvassers,  was  the  only 
evidence  which  the  Commission  could  receive  of  the  ap- 
pointment of  electors,  he  said  as  follows: 

“ The  Constitution  does  not  prescribe  the  evidence  which  shall  be  re- 
ceived of  the  appointment.  That  only  provides  for  the  voting  of  the 
electors,  and  the  transmission  by  them  of  a list  of  the  persons  voted  for, 
to  the  seat  of  government,  directed  to  the  President  of  the  Senate.  Con- 
gress has,  therefore,  enacted  that  the  Governor  shall  issue  a certified  list 
of  the  electors  to  them  before  the  time  fixed  for  their  meeting.  The  lan- 
guage of  the  act  is  that  ‘ It  shall  be  the  duty  of  the  executive  of  each 
State  to  cause  three  lists  of  the  names  of  the  electors  of  such  State  to  be 
made  and  certified,  and  to  be  delivered  to  the  electors  of  such  State  on  or 
before  the  day  on  which  they  are  required  by  the  previous  section  to 
meet.’— ( Kevised  Statutes,  sec.  136.) 

“There  is  nothing  in  this  act  which  declares  that  the  certificate  thus 
issued  shall  be  conclusive  of  the  appointment.  It  does  not  say  that  the 
evidence  thus  furnished  is  indispensable,  or  that  other  evidence  of  the 
appointment  may  not  be  received.  Its  only  object  was  simply  to  provide 
convenient  evidence  of  the  appointment  for  the  consideration  of  the  two 
Houses  of  Congress  when  called  upon  to  count  the  votes.  It  was  not  its 
purpose  to  control  their  judgment  in  deciding  between  different  sets  of 
papers  purporting  to  contain  the  votes  of  the  State.  A compliance  with 
the  act  is  not  obligatory  upon  the  executive  of  the  State.  He  is  not  in 
that  respect  subject  to  the  control  of  Congress.  He  could  not  be  com- 
pelled to  give  the  certificate,  nor  could  he  be  subject  to  any  punishment 
for  refusal  to  act  in  the  matter.  And  certainly,  when  Congress  can  fur- 
nish no  means  to  control  the  action  of  a State  officer,  it  cannot  render  his 
action  either  indispensable  or  conclusive  of  the  rights  of  the  State.  In- 
stances may  be  readily  imagined  where,  from  accident,  disability,  or  sick- 
ness of  the  Governor,  the  certified  lists  could  not  be  obtained,  or  be  ob- 
tained and  delivered  iu  time,  or,  if  obtained,  might  be  lost  or  destroyed 
before  delivery.  In  such  cases  would  there  be  no  remedy?  Would  the 


28 


420 


State  in  sueli  cases  lose  its  vote?  Surely,  no  one  will  seriously  contend 
tor  such  a result.  Suppose,  further,  that  the  Governor,  by  mistake  or 
fraud,  should  deliver  certified  lists  in  favor  of  persons  not  appointed 
electors;  for  instance,  to  persons  who  had  not  received  a majority  of  the 
votes  cast  for  those  officers,  (the  persons  having  such  majority  of  votes 
being  eligible  to  the  office  under  the  Constitution  ;)  would  it  he  pre- 
tended that  the  will  of  the  State  should  be  thwarted  through  the  force  of 
his  certificate?  I feel  confident  that  no  lawyer  in  the  country  would 
hold  that  the  truth  could  not  be  shown  in  such  case  against  the  face  of 
the  certificate  ; and  I will  never  believe  in  the  possibility  of  this  Com- 
mission so  holding  until  I see  its  decision  to  that  effect. 

“ The  truth  is,  a certificate  is  only  prima-facie  evidence  of  the  fact  cer- 
tified. Indeed,  I venture  to  assert,  without  fear  of  successful  contradic- 
tion, that  in  the  absence  of  positive  law  declaring  its  effect  to  be  other- 
wise, a certificate  of  any  officer  to  a fact  is  never  held  conclusive  on  any 
question  between  third  parties;  it  is  always  open  to  rebuttal.  There 
are,  indeed,  cases  where  a party  who  had  been  induced  to  act  upon  the 
certificate  of  a fact  may  insist  that  the  truth  of  the  certificate  shall  not 
be  denied  to  bis  injury,  but  those  cases  proceed  upon  the  doctrine  of  es- 
toppel, which  has  no  application  here.  The  fact  here  to  be  ascertained 
is,  who  have  been  duly  appointed  electors  of  the  State  of  Florida,  not 
who  have  the  certificates  of  appointment.  It  is  the  election,  and  not 
the  certificate,  which  gives  the  right  to  the  office.  The  certificate  being 
only  evidence,  can  be  overcome  by  any  evidence  which  is  in  its  nature 
superior.  And  this  is  equally  true  of  the  certificate  issued  under  the 
law  of  the  State  as  of  the  certificate  issued  under  the  act  of  Congress. 
And  it  is  equally  true  of  the  certificate  of  the  board  of  canvassers. 
Those  officers  exercised  mere  ministerial  functions  ; they  possessed  no 
judicial  power ; their  determination  had  none  of  the  characteristics  or 
conclusiveness  of  a judicial  proceeding ; it  has  been  so  decided  by  the 
Supreme  Court  of  the  State.  And  yet,  in  the  opinion  of  the  distinguished 
Commissioner  from  Indiana,  [Senator  Morton,]  and  some  other  Commis- 
sioners from  the  Senate  and  House  appear  to  concur  with  him,  the  deter- 
mination of  those  canvassers,  as  expressed  by  their  certificate,  is  more 
sacred  and  binding  than  the  judgment  of  the  highest  court  of  the  land, 
incapable  of  successful  attack  on  any  ground  whatever. 

“ I put,  yesterday,  to  these  gentlemen  this  question : Supposing  the 
canvassers  had  made  a mistake  in  addition  in  footing  up  the  returns,  a 
mistake  that  changed  the  result  of  the  election,  and  acting  upon  the 
supposed  correctness  of  the  addition  they  had  issued  a certificate  to 
persons  as  electors  who  were  not  in  fact  chosen,  and  such  persons  had 
met  and  voted  for  President  and  Vice-President  and  transmitted  the 
certificate  of  their  votes  to  Washington ; and  afterwards,  before  the 
vote  was  counted  by  the  two  Houses  of  Congress,  the  mistake  was  dis- 
covered— was  there  no  remedy  ? The  gentlemen  answered  t hat  there  was 
none ; that  whatever  mistakes  of  the  kind  may  have  been  committed 


4^1 


must  be  corrected  before  the  vote  was  east  by  the  electors  or  they  could 
not  be  corrected  at  all.  If  this  be  sound  doctrine,  then  it  follows  that 
by  a clerical  mistake  in  arithmetical  computation  a person  may  be  placed 
in  the  Chief  Magistracy  of  the  nation  against  the  will  of  the  people,  and 
the  two  Houses  of  Congress  are  powerless  to  prevent  the  wrong. 

“ But  the  gentlemen  do  not  stop  here.  I put  the  further  question  to 
them  : Supposing  the  canvassers  were  bribed  to  alter  the  returns,  and 
thus  change  the  result,  or  they  had  entered  into  a conspiracy  to  commit 
a fraud  of  this  kind,  and  in  pursuance  of  the  bribery  or  conspiracy  they 
did  in  fact  tamper  with  and  alter  the  returns,  and  declare  as  elected 
persons  not  chosen  by  the  voters,  and  such  persons  had  voted  and  trans- 
mitted their  vote  to  the  President  of  the  Senate,  but  before  the  vote 
was  counted  the  fraud  was  detected  and  exposed — was  there  no  remedy  ? 
The  gentlemen  answered,  as  before,  that  there  was  none  ; that  whatever 
fraud  may  have  existed  must  be  proceeded  against  and  its  success  de- 
feated before  the  electors  voted  ; that  whatever  related  to  their  action 
was  then  a closed  book.  If  this  be  sound  doctrine,  it  is  the  only  instance 
in  the  world  where  fraud  becomes  enshrined  and  sanctified  behind  a 
certificate  of  its  authors.  It  is  elementary  knowledge  that  fraud  vitiates 
all  proceedings,  even  the  most  solemn  ; that  no  form  of  words,  no  amount 
of  ceremony,  and  no  solemnity  of  procedure  can  shield  it  from  exposure 
and  protect  its  structure  from  assault  and  destruction.  The  doctrine 
asserted  here  would  not  be  applied  to  uphold  the  pettiest  business  trans- 
action, and  I can  never  believe  that  the  Commission  will  give  to  it  any 
greater  weight  in  a transaction  affecting  the  Chief  Magistracy  of  the 
nation. 

“ But  the  gentlemen  do  not  stop  here.  I put  the  further  question  to 
them  : Supposing  the  canvassers  were  coerced  by  physical  force,  by  pistols 
presented  to  their  heads,  to  certify  to  the  election  of  persons  not  chosen 
by  the  people,  and  the  persons  thus  declared  elected  cast  the  vote  of  the 
State — was  there  no  remedy?  and  the  answer  was  the  same  as  that  given 
before.  For  any  wrong,  mistake,  fraud,  or  coercion  in  the  action  of  the 
canvassers,  say  these  geutlemen,  the  remedy  must  be  applied  before  the 
electors  have  voted  ; the  work  of  the  electors  is  done  when  they  have 
acted,  and  there  is  no  power  under  existing  law  by  which  the  wrong  can 
be  subsequently  righted. 

“ The  canvass  of  the  votes  in  Florida  was  not  completed  until  the  morn- 
ing of  the  day  of  the  meeting  of  the  Electoral  College,  and  within  a few 
hours  afterwards  its  vote  was  cast.  To  have  corrected  any  mistake  or 
fraud  during  these  hours,  by  any  proceeding  known  to  the  law,  would 
have  been  impossible.  The  position  of  these  gentlemen  is,  therefore, 
that  there  is  no  remedy,  however  great  the  mistake  or  crime  committed. 
If  this  be  sound  doctrine,  if  the  representatives  in  Congress  of  forty-two 
millions  of  people  possess  no  power  to  protect  the  country  from  the  in- 
stallation of  a Chief  Magistrate  through  mistake,  fraud,  or  force,  we  are 
the  only  self-governing  people  in  the  world  held  in  hopeless  bondage  at 
the  mercy  of  political  jugglers  and  tricksters. 


422 


“ This  doctrine,  which  seems  to  me  to  be  as  unsound  in  law  as  it  is 
shocking  in  morals,  is  supported  upon  the  notion  that  if  we  are  permitted 
to  look  behind  the  certificate  of  the  Governor,  and  of  the  canvassing- 
board  upon  which  that  certificate  is  founded,  we  shall  open  the  door  to 
an  investigation  which  may  not  be  brought  to  a close  before  the  fourth  of 
March.  The  argument  is  that  as  the  new  President  is  to  be  installed  on 
that  day,  and  the  votes  of  the  Electoral  Colleges  are  to  he  counted  in 
February,  all  inquiry  as  to  the  truth  of  that  certificate  is  forbidden,  be- 
cause it  may  be  impracticable  to  carry  the  inquiry  to  a termination  in 
time  for  the  installation.  This  position  was  taken  by  counsel  before  the 
Commission,  and  presented  in  every  possible  form,  and  was  repeated 
yesterday  by  Commissioners  Hoar  and  Garfield,  and  dwelt  upon  by 
them  as  though  it  were  conclusive  of  the  question.  The  argument 
amounts  only  to  this,  that  the  difficulty  of  exposing  in  time  a mistake 
or  fraud  of  the  canvassing-board  is  a sufficient  reason  for  not  attempting 
the  exposure  at  all,  and  for  quietly  submitting  to  the  consequent  perpe- 
tration of  a monstrous  wrong. 

“ It  is  true  that  the  machinery  for  the  election  of  President,  devised  by 
the  framers  of  the  Twelfth  Amendment  to  the  Constitution,  contemplates 
the  induction  of  the  successful  candidate  into  office  on  the  4tli  of  March, 
and  that  the  office  shall  not  on  that  day  be  either  vacant  or  disputed. 
I admit,  therefore,  to  the  fullest  extent  claimed  by  gentlemen,  that  no 
proceedings  can  be  permitted  which  will  postpone  the  counting  of  the 
votes  so  as  to  prevent  a declaration  within  that  period  of  the  person 
elected,  or  a reference  of  the  election  to  the  House  of  Representatives. 
But  this  limitation  of  time,  so  far  from  being  a reason  for  submitting  to 
a mistake  or  to  a fraud,  is  a reason  for  immediate  action  to  correct  the 
one  and  expose  the  other.  Whatever  is  done  to  overthrow  the  priina- 
facie  evidence  presented  by  the  certificate  of  the  Governor  must  be  com- 
menced, carried  forward,  and  completed,  so  that  the  result  of  the  pro- 
ceeding can  be  considered  by  the  two  Houses  of  Congress  when  the  cer- 
tificates are  opened  in  their  presence  and  the  votes  are  counted.  The 
countervailing  evidence  must  be  presented  in  some  authentic  form,  like 
the  judgment  of  a competent  tribunal,  or  the  legislative  declaration  of  a 
State,  or  the  finding  of  an  appropriate  committee  approved  by  the  House 
appointing  it ; and  then  it  will  constitute  a basis  for  the  action  of  the 
Houses  without  delaying  their  proceedings.  If,  for  example,  the  certifi- 
cate of  the  Governor  were  forged,  or  designated  as  electors  persons  for 
whom  no  votes  were  cast,  the  fact,  if  it  were  desired  to  ask  the  action  of 
the  two  Houses  upon  it  in  counting  the  vote,  should  be  presented  in  such 
a conclusive  form  as  to  be  the  subject  of  consideration  as  a fact  found. 
If  an  investigation  is  then  required  to  establish  the  fact  alleged,  I admit 
that  the  proceeding  cannot  be  had,  except  by  permission  o f the  two  Houses, 
by  reason  of  the  delay  it  would  occasion.  The  two  Houses  cannot  be 
required  to  stop  the  count  to  take  testimony  and  investigate  the  truth 
of  mere  allegations;  but  if  the  fact  of  forgery  or  falsity  has  already 


423 


been  found  by  competent  authority,  and  the  finding  is  laid  before  the 
two  Houses,  the  finding  would  not  only  be  a proper  subject  of  considera- 
tion by  them,  but  it  would  be  their  manifest  duty  to  act  upon  the  find- 
ing, in  order  that  the  nation  might  not  be  defrauded  in  its  choice  of  a 
Chief  Magistrate. 

“ In  the  view  which  I take  of  this  subject  there  would  be  no  great  de- 
lay in  the  counting  of  the  electoral  votes  if  Congress  were  permitted  to 
look  behind  the  action  of  the  Governor  or  of  the  canvassing-board  ; for 
the  facts  to  be  brought  to  the  attention  of  the  two  Houses  would  have 
to  be  presented  in  the  manner  indicated  before  they  could  be  received 
and  acted  upon,  unless  the  two  Houses  should  consent  that  testimony  be 
taken  at  the  time.  If  the  fact  alleged  could  be  readily  established  with- 
out seriously  delaying  the  count,  it  is  not  probable  that  testimony  upon 
the  subject  would  be  refused.  For  example,  testimony  would  hardly  be 
refused  as  to  the  ineligibility  of  an  elector,  or  the  constitution  of  a can- 
vassing-board, or  the  condition  of  a State  as  under  military  rule  at  the 
time  of  the  election.  But  where  the  fact  alleged  is  one  of  conflicting 
evidence,  and  is  not  susceptible  of  proof  within  reasonable  limits,  then, 
I think,  the  fact  must  be  presented  properly  authenticated,  as  I have 
stated. 

“ Evidence  in  this  form,  impeaching  the  correctness  of  the  certificate  of 
the  Governor  and  canvassing-board,  can  be  furnished  by  the  State  or  by 
either  House  of  Congress  ; by  the  State,  which  is  interested  that  it  shall 
not  be  defrauded  of  its  vote  in  the  election ; and  by  either  House  of 
Congress,  which  is  interested  that  the  forty-two  millions  of  people 
composing  the  nation  shall  not  be  deprived  of  the  President  of  their 
choice. 

“ In  this  case  the  State  of  Florida  has  furnished  evidence  in  an  au- 
thentic form  and  conclusive  in  its  character,  that  the  Hayes  electors  were 
never  appointed  and  that  the  certificate  of  the  Governor  and  of  the  can- 
vassing-board in  that  respect  is  false  ; and  that  the  Tilden  electors  were 
duly  appointed.  It  has  furnished  the  declaration  of  its  Legislature  in  a 
statute  affirming  such  to  be  the  fact,  and  it  has  furnished  a judicial  de- 
termination of  its  Courts  to  the  same  effect. 

“ Soon  after  the  canvass  of  the  State  board  was  closed,  and  its  certifi- 
cate of  the  result  was  filed,  Mr.  Drew,  who  had  been  a candidate  for  the 
office  of  governor  at  the  same  election,  against  Stearns,  the  incnmbent, 
and  had  been  declared  defeated  by  the  action  of  the  canvassers  in  ex- 
cluding votes  for  him,  instituted  proceedings  by  mandamus  in  the  Su- 
preme Court  of  the  State  to  compel  the  canvassers  to  count  the  votes 
given,  as  shown  by  the  returns.  In  his  petition  for  the  writ  he  averred 
that,  according  to  the  returns  received  at  the  office  of  the  Secretary  of 
State,  and  on  file  there,  a majority  of  the  votes  for  the  office  of  governor 
were  cast  for  him ; and  charged  against  the  canvassers  the  same  disre- 
gard of  the  law  of  the  State  which  is  alleged  against  them  in  the  count 
for  the  electors  Indeed,  their  action  affected  equally  the  candidates  for 


governor  and  for  electors.  The  canvassers  appeared  to  the  writ,  and  pro- 
ceedings were  conducted  to  a judgment  on  the  merits.  The  Supreme 
Court  adjudged  that  the  canvassers  had  no  authority  to  exclude  the 
votes,  by  which  exclusion  alone  Stearns  had  been  declared  elected,  and 
directed  them  to  restore  the  votes.  In  obedience  to  this  judgment  they 
restored  the  excluded  votes,  and  certified  a majority  for  Drew,  who  went 
into  office  and  has  ever  since  been  the  accepted  Governor  of  the  State. 
It  was  the  exclusion  of  the  same  votes  for  electors  that  enabled  the  can- 
vassers to  declare  the  Hayes  electors  chosen.  In  deciding  this  case  the 
court  gave  a construction  to  the  statute  under  which  the  canvassers  acted, 
and  delivered  the  opinion  from  which  I have  already  quoted. 

“As  soon  as  it  was  known  that  the  canvassers  had  certified  to  the  elec- 
tion of  the  Hayes  electors,  the  Tilden  electors  filed  an  information  in  the 
nature  of  a quo  warranto  against  them  in  one  of  the  Circuit  Courts  of  the 
State,  to  determine  the  validity  of  their  respective  claims  to  the  office  of 
electors.  This  proceeding  was  commenced  upon  the  day  on  which  the 
canvass  was  completed,  and  process  was  served  on  the  Hayes  electors 
b store  they  had  cast  their  votes.  The  Circuit  Court  had  jurisdiction  of 
the  proceeding  by  the  constitution  of  the  State,  the  eighth  section  of 
which  provides  in  terms  that  the  Circuit  Court  and  the  judges  thereof 
shall  have  power  to  issue  writs  of  quo  warranto.  In  the  information  the 
Tilden  electors  alleged  that  they  were  lawfully  elected  to  the  office  of 
electors,  and  that  the  Hayes  electors  were  not  thus  elected,  but  were 
usurpers.  The  Hayes  electors  appeared  to  the  writ,  and,  first  upon  de- 
murrer, aud  afterwards  upon  an  investigation  of  the  facts,  their  right  to 
act  as  electors  was  determined.  And  it  was  adjudged  that  the  Hayes 
electors  were  never  appointed,  and  were  never  entitled  to  assume  and 
exercise  the  functions  of  that  office,  and  were  usurpers;  but  that  the 
Tilden  electors  were  duly  appointed  at  the  election  on  the  7th  of  Novem- 
ber, and  were  entitled  on  the  6th  of  December  to  receive  certificates  of 
election,  and  on  that  day  and  ever  since  to  exercise  the  powers  and  per- 
form the  duties  of  that  office.  It  matters 'not  that  this  judgment  was 
not  reached  until  after  the  Hayes  electors  had  voted  ; it  was  an  adjudi- 
cation by  a competent  court  upon  the  validity  of  their  title  as  electors 
at  the  time  they  assumed  to  cast  the  vote  of  the  State.  That  judgment 
remains  in  full  force  ; the  appeal  from  it  neither  suspends  its  operation 
nor  affects  its  validity.*  It  is  certainly  entitled  to  great,  if  not  conclu- 
sive, weight  upon  the  subject  before  us,  especially  when  considered  in 
connection  with  the  action  of  the  Legislature  of  the  State.  That  action 
seems  to  me  to  be  conclusive  of  the  case. 

“ After  the  Supreme  Court  in  the  Drew  proceeding  had  given  a construc- 
tion to  the  election  law,  and  decided  that  the  canvassers  had  disregarded 
its  plain  provisions,  exercised  judicial  functions  which  they  never  pos- 
sessed, and  unlawfully  rejected  votes,  the  Legislature  took  steps  to  have 


* The  judgment  was  subsequently  affirmed  by  the  Supreme  Court. 


425 


their  count  corrected  with  respect  to  the  electors,  as  it  had  been  with 
respect  to  the  governor.  And  on  the  17th  of  January  last  it  passed  ‘ An 
act  to  provide  for  a recanvass  according  to  the  laws  of  the  State  of  Florida, 
as  interpreted  by  the  Supreme  Court,  of  the  votes  for  electors  of  Presi- 
dent and  Vice-President  cast  at  the  election  held  November  7,  1876.’ 
This  act  required  that  the  Secretary  of  State,  the  Attorney-General,  and 
the  Comptroller  of  Public  Accounts,  or  any  two  of  them,  together  with  any 
other  member  of  the  Cabinet  who  might  be  designated  by  them,  should 
meet  forthwith  at  the  office  of  the  Secretary,  pursuant  to  a notice  from 
him,  and  form  a board  of  State  canvassers,  and  proceed  to  canvass  the 
returns  of  election  of  electors  of  President  aud  Vice-President  held  on 
the  7tli  of  November,  and  determine  and  declare  who  were  elected  and 
appointed  electors  at  that  election,  as  shown  by  the  returns  on  tile.  The 
act  directed  the  canvassers  to  follow  the  construction  of  the  law  given 
by  the  Supreme  Court  defining  the  powers  and  duties  of  state  canvassers. 
It  directed  that  their  certificate  of  the  result  should  be  recorded  in  the 
office  of  the  Secretary  of  State,  and  a copy  be  published  in  one  or  more 
newspapers  printed  at  the  seat  of  government.  The  canvassers  accord- 
ingly met  and  made  the  canvass  directed,  and  certified  that  the  Tilden 
electors,  naming  them,  had  received  a majority  of  the  votes  and  were  duly 
elected. 

Subsequent  to  this,  and  on  the  26th  of  January,  the  Legislature  passed 
another  act  in  relation  to  the  Tilden  electors.  That  act  recited,  among 
other  things,  that — 

“ 1 Whereas  the  board  of  state  canvassers  constituted  under  the  act  ap- 
proved February  27. 1872,  did  interpret  the  laws  of  this  State  defining  the 
powers  and  duties  of  the  said  board  in  such  manner  as  to  give  them  power 
to  exclude  certain  regular  returns,  and  did  in  fact  under  such  interpreta- 
tion exclude  certain  of  such  regular  returns,  which  said  interpretation  has 
been  adjudged  by  the  Supreme  Court  to  be  erroneous  and  illegal; 

“ ‘ And  whereas  the  late  Governor,  Marcellus  L.  Stearns,  by  reason  of 
said  illegal  action  and  erroneous  and  illegal  canvass  of  the  said  board  of 
State  canvassers,  did  erroneously  cause  to  be  made  and  certified  lists  of 
the  names  of  electors  of  this  State,  containing  the  names  of  said  Charles 
H.  Pearce,  Frederick  C.  Humphreys,  William  H.  Holden,  and  Thomas  W. 
Long — 

“ The  Hayes  electors — - 

and  did  deliver  such  lists  to  said  persons,  when  in  fact  the  said  persons 
had  not  received  the  highest  number  of  votes,  and,  on  a canvass  conducted 
according  to  the  rules  prescribed  and  adjudged  as  legal  by  the  Supreme 
Court,  were  not  appointed  as  electors,  or  entitled  to  receive  such  lists  from 
the  Governor,  but  Robert  Bullock,  Robert  B.  Hilton,  Wilkinson  Call,  and 
James  E.  Yonge — 

“ The  Tilden  electors — 

were  duly  appointed  electors,  aud  were  entitled  to  have  tlieir  names  com- 
pose the  lists  made  and  certified  by  the  Governor,  and  to  have  such  lists 
delivered  to  them: 

“ ‘ Now,  therefore,  the  people  of  the  State  of  Florida,  represented  in 
Senate  and  Assembly,  do  enact,  &c.’ 


“The  act  then  proceeded  to  declare  that  the  Tilden  electors,  naming 
them,  were  on  the  7th  of  November  duly  chosen  and  appointed  by  and 
on  behalf  of  the  State  of  Florida  in  such  manner  as  the  Legislature 
thereof  had  directed,  and  were  from  that  day  entitled  to  exercise  all  the 
powers  and  duties  of  the  office  of  electors  and  had  full  power  and  au- 
thority on  the  6th  of  December,  1876, --to  vote  as  such  electors  for  Presi- 
dent, and  Vice-President,  and  to  certify  and  transmit  their  votes  as  pro- 
vided by  law.  The  statute  then  ratified,  confirmed,  and  declared  as 
valid,  to  all  intents  and  purposes,  the  acts  of  such  electors.  It  also  au- 
thorized and  directed  the  Governor  to  make  and  certify  in  due  form 
and  under  the  seal  of  the  State  three  lists  of  the  names  of  the  electors, 
and  to  transmit  the  same,  with  an  authentic  copy  of  the  act,  to  the 
President  of  the  Senate,  and  declared  that  such  lists  and  certificates 
should  be  as  valid  and  effectual  to  authenticate  in  behalf  of  the  State 
the  appointment  of  such  electors  by  the  State  as  if  they  had  been  made 
and  delivered  on  or  before  the  6th  of  December,  1876,  and  had  been 
transmitted  immediately  thereafter,  and  that  the  lists  and  certificates 
containing  the  names  of  the  Hayes  electors  were  illegal  and  void.  The 
act  further  authorized  and  directed  the  Governor  to  cause  three  other 
lists  of  the  names  of  the  Tilden  electors  to  be  made  and  certified  and 
forthwith  delivered  to  them,  and  required  those  electors  to  meet  at  the 
Capitol  of  the  State  and  to  make  and  sign  three  additional  certificates 
of  the  votes  given  by  them  on  the  6th  of  December,  to  each  of  which 
should  be  annexed  one  of  the  lists  of  the  electors  furnished  by  the  Gov- 
ernor, and  that  one  of  the  certificates  should  be  transmitted  by  messen- 
ger, and  one  by  mail,  to  the  President  of  the  Senate,  and  the  third  de- 
livered to  the  judge  of  the  district,  as  required  by  law. 

“ Pursuant  to  this  act,  the  Governor  of  the  State  made  and  certified 
three  lists  of  the  Tilden  electors  and  delivered  the  same  to  them,  and 
the  said  electors  assembled  and  certified  that  they  had  met  on  the  6th 
day  of  December  at  the  Capitol  and  given  their  votes  as  electors  for 
President  and  Vice-President  by  distinct  ballots,  the  votes  for  President 
being  for  Mr.  Tilden,  and  the  votes  for  Vice-President  being  for  Mr. 
Hendricks,  and  signed  three  certificates  of  their  action,  which  were  for- 
warded as  required  by  law.  The  certificates  were  accompanied  by  the 
certified  lists  of  the  Governor,  by  a certified  copy  of  the  two  acts  of  the 
State,  and  by  a certified  copy  of  the  returns  on  file  in  the  office  of  the 
Secretary  of  State,  with  a tabulated  statement  annexed  showing  the  re- 
sult of  the  votes.  The  third  certificate,  which  is  before  us,  embraces  all 
these  proceedings. 

“ Here,  then,  we  have  the  highest  possible  evidence  of  the  action  of  the 
State  of  Florida.  The  two  sets  of  electors  both  conformed  to  every  re- 
quirement of  the  law  in  their  proceedings.  One  set,  the  Hayes  electors, 
have  the  certificate  of  Governor  Stearns  of  their  election,  based  upon  a 
certificate  of  the  canvassing-board,  which  in  its  nature  is  mere  prima- 
fncie  evidence:  the  other  set,  the  Tilden  electors,  have  an  adjudication 


427 


of  a State  Court  of  competent  jurisdiction,  that  they  alone  were  the 
legally-appointed  electors.  They  have  the  authoritative  declaration  of 
the  Legislature  of  the  State  that  they  alone  were  entitled  to  act  as  elec- 
tors and  vote  for  President  on  the  6th  of  December ; and  they  have  a 
certificate  of  Governor  Drew,  based  upon  a recanvass  of  the  votes,  that 
they  were  duly  appointed.  And  accompanying  this  evidence  they  have 
a certified  copy  of  the  returns,  showing  that  they  received  a majority  of 
the  votes  cast  at  the  election. 

“Under  these  circumstances  can  it  be  possible  that  there  is  any  serious 
question  as  to  which  of  the  two  sets  of  electors  was  duly  appointed?  As 
the  Legislature  was  alone  authorized  to  determine  the  manner  in  which 
the  electors  should  be  appointed,  it  could  furnish  in  its  own  way  evi- 
dence of  their  acts  as  agents  of  the  State,  whatever  may  he  the  power  of 
Congress  for  its  convenience  in  requiring  a certificate  of  the  Governor. 
Were  this  transaction  one  that  involved  merely  questions  of  property, 
instead  of  a matter  of  great  public  and  political  interest,  I do  not  think 
there  is  a lawyer  on  this  Commission  who  could  hesitate  a moment  as  to 
the  conclusive  character  of  the  evidence  in  favor  of  the  Tilden  electors. 

“ In  addition  to  this  action  of  the  State,  Congress  has  moved  in  the  mat- 
ter, and  very  properly  so ; for  the  entire  people  are  interested  in  the  elec- 
tion of  their  Chief  Magistrate.  No  other  officer  can  exercise  so  great  an 
influence  for  good  or  for  evil  upon  the  whole  country.  He  is  not  only  the 
Commander-in-Chief  of  our  Army  and  Navy,  but  he  is  the  executor  of 
our  laws,  the  organ  of  intercourse  with  foreign  nations,  the  bestower  of 
offices  of  honor  and  trust,  and  is  charged  with  the  duty  of  maintaining 
and  defending  the  Constitution.  Of  all  the  obligations  resting  upon  the 
representatives  of  the  people  none  is  greater  than  that  of  seeing  that  no 
one  takes  that  high  office  with  a defective  and  tainted  title.  Acting 
upon  this  obligation,  the  House  of  Representatives  early  in  the  session, 
when  it  was  rumored  that  irregular  and  fraudulent  proceedings  had 
characterized  the  election  in  some  of  the  States,  and  in  Florida  among 
others,  appointed  committees  of  investigation  to  ascertain  the  facts  and. 
report  who  in  truth  had  been  appointed  electors  by  those  States.  One  of 
these  committees  proceeded  to  Florida,  and  took  there  a large  amount  of 
testimony  on  the  subject,  which  it  has  returned  to  the  House  with  its 
conclusions  as  to  the  result.  This  committee  has  reported  that  the  Til- 
den electors  were  duly  appointed,  concurring  in  that  respect  with  the  ac- 
tion of  the  State  tribunals  and  the  State  Legislature.  Their  report  and 
its  conclusions,  if  adopted  by  the  House,  would  undoubtedly  have  a con- 
trolling influence  upon  its  action  in  counting  the  vote  of  the  State,  if 
this  Commission  had  not  been  created,  and  for  that  reason  they  should  be 
received,  and  if  not  accepted  as  final,  at  least  be  considered  by  us.* 


*“  The  committee  presented  to  the  House  their  report  on  the  31st  of 
January,  in  which  they  declared  that  the  evidence  was  perfectly  conclu- 
sive that  the  State  of  Florida  had  cast  her  vote  for  the  Tilden  electors, 


428 


“ We  are  invested  with  all  the  powers  of  the  two  Houses  of  Congress 
to  ascertain  and  decide  what  persons  were  1 duly  appointed  ’ electors  of 
Florida.  By  the  law  which  has  governed  legislative  bodies  from  their 
earliest  existence,  matters  upon  which  they  may  be  called  to  act  can  be 
investigated  by  committees  appointed  for  that  purpose.  And  either 
House  may  receive  the  testimony  taken  by  its  committee  and  proceed 
upon  that,  or  accept  the  finding  of  its  committee  as  its  judgment,  and 
act  upon  that  as  conclusive.  And  not  until  now  has  it  ever  been  ques- 
tioned that  the  power  of  each  House  to  take  testimony  in  that  way  was 
not  as  extensive  as  the  subjects  upon  which  it  could  act.  One  of  the 
gentlemen  on  this  Commission  [Mr.  Edmunds]  introduced  into  the  Sen- 
ate during  the  present  session  resolutions  for  the  appointment  of  commit- 
tees to  inquire  into  the  matters  which  we  are  now  considering,  and  Sen- 
ators Morton  and  Frelinghuysen  voted  for  them.  One  of  the  resolutions 
authorized  the  committees  to  inquire,  among  other  things,  ‘ whether  the 
appointment  of  electors,  or  those  claiming  to  be  such,  in  any  of  the  States 
lias  been  made  by  force,  fraud,  or  other  means  otherwise  than  in  con- 
formity with  the  Constitution  and  laws  of  the  United  States  and  the 
laws  of  the  respective  States ; ’ and  in  compliance  with  the  resolutions 
the  committees  have  passed  weeks  in  their  investigations.  It  certainly 
provokes  surprise  and  comment  to  hear  these,  gentlemen  now  deny  that 
either  House  of  Congress  has  any  power  to  go  behind  the  certificate  of 
the  Governor  and  that  of  the  canvassing-board  of  the  State,  and  to  in- 
quire into  the  matters  for  which  those  committees  were  appointed. 

“ It  is  said  that  the  Hayes  electors  were  de  facto  officers,  and,  therefore, 
that  their  action  is  to  be  deemed  valid  until  they  are  adjudged  usurp- 
ers. But  they  were  no  more  de  facto  officers  than  the  Tilden  electors. 
Both  sets  of  electors  acted  at  the  same  time  and  in  the  same  building. 
The  doctrine  that  the  validity  of  the  acts  of  de  facto  officers  cannot  be 
collaterally  assailed,  and  that  they  are  binding  until  the  officers  are 
ousted,  is  usually  applied  where  there  is  a continuing  office,  and  then 


and  they  closed  with  recommending  the  passage  of  the  following  reso- 
lution : 

“ ‘ Resolved , That  at  the  election  held  on  November  7tli,  A.  D.  1876,  in 
the  State  of  Florida,  Wilkinson  Call,  J.  E.  Yonge,  R.  B.  Hilton,  and  Rob- 
ert Bullock  were  fairly  and  duly  chosen  as  Presidential  electors,  and  that 
this  is  shown  by  the  face  of  the  returns,  and  fully  substantiated  by  the 
evidence  of  the  actual  votes  cast;  and  that  the  said  electors  having,  on 
the  first  Wednesday  of  December,  A.  D.  1876,  cast  their  votes  for  Samuel 
J.  Tilden  for  President  and  for  Thomas  A.  Hendricks  for  Vice-President, 
they  are  the  legal  votes  of  the  State  of  Florida,  and  must  be  counted  as 
such.’ 

“ This  resolution  was  subsequently  adopted  by  the  House  by  a vote  of 
142  yeas  to  82  nays. 

“ The  Subcommittee  on  Privileges  and  Elections  of  the  Senate  also 
made  an  investigation  of  the  Florida  case,  and  a report  which  was  ad- 
verse in  its  conclusions  to -those  of  the  House  committee,  but  the  report 
was  never  adopted  by  the  Senate.” 


429 


only  on  grounds  of  public  policy.  Private  individuals  are  not  called 
upon,  and  in  most  cases  are  not  permitted,  to  inquire  into  the  title  of 
persons  clothed  with  the  insignia  of  public  office  and  in  apparent  pos- 
session of  its  powers  and  functions.  They  are  required,  for  the  due 
order  and  peace  of  society,  to  respect  the  acts  of  such  officers,  and  yield 
obedience  to  their  authority,  until  in  some  regular  mode  provided  by 
law  their  title  is  determined  and  they  are  ousted.  As  a consequence  of 
the  respect  and  obedience  thus  given,  private  individuals  can  claim,  in 
all  that  concerns  themselves  and  the  public,  for  the  acts  of  such  officers, 
the  same  efficacy  as  though  the  officers  were  rightfully  clothed  with  au- 
thority. The  doctrine  may  be  applied  even  to  a single  act  of  an  officer 
where  the  office  is  a continuing  one,  but  it  may  be  doubted  whether  it  is 
applicable  to  the  case  of  a person  simply  charged  with  the  performance 
of  a single  act.  In  such  performance  it  would  seem  that  the  person  could 
properly  be  regarded  only  as  the  official  agent  of  the  State,  and  if,  there- 
fore, he  was  without  authority,  his  act  would  be  void.  If  the  doctrine 
is  ever  applicable  to  such  a case,  it  cannot  be  applied,  where  the  act  per- 
formed has  not  accomplished  its  purpose  before  the  want  of  right  in  the 
officer  to  do  the  act  in  question  is  determined.  None  of  the  reasons 
upon  which  the  doctrine  rests,  of  policy,  convenience,  or  protection  to 
private  parties,  has  any  application  to  a case  of  this  kind.  It  does  not 
seem,  therefore,  to  me  that  there  is  any  force  in  the  position.” 

Justice  Field  concluded  his  argument  as  follows  : 

“ Mr.  President,  I desire  that  this  Commission  should  succeed  and  give 
by  its  judgment  peace  to  the  country.  But  such  a result  can  only  be  at- 
tained by  disposing  of  the  questions  submitted  to  us  on  their  merits.  It 
cannot  be  attained  by  a resort  to  technical  subtleties  and  ingenious  de- 
vices to  avoid  looking  at  the  evidence.  It  is  our  duty  to  ascertain  if  pos- 
sible the  truth,  and  decide  who  were  in  fact  duly  appointed  electors  in 
Florida,  not  merely  who  had  received  certificates  of  such  appointment. 
That  State  has  spoken  to  us  through  her  courts,  through  her  legislature 
and  through  her  executive,  and  has  told  us  iu  no  ambiguous  terms  what 
was  her  will  and  whom  she  had  appointed  to  express  it.  If  we  shut  our 
ears  to  her  utterances,  and  closing  our  eyes  to  the  evidence  decide  this 
case  upon  the  mere  inspection  of  the  certificates  of  the  Governor  and 
canvassing-board,  we  shall  abdicate  our  powers,  defeat  the  demands  of 
justice,  and  disappoint  the  just  expectations  of  the  people.  The  country 
may  submit  to  the  result,  but  it  will  never  cease  to  regard  our  action  as 
unjust  in  itself,  and  as  calculated  to  sap  the  foundations  of  public  moral- 
ity.” 

The  Commission  by  a vote  of  eight  to  seven— each 
member  voting  according  to  his  party  predilections — came 
to  the  amazing  conclusion — and  so  decided — that  it  was 
“ not  competent  under  the  Constitution  and  the  low,  as  it  existed 


¥ 


430 


at  the  date  of  the  passage  of  the  said  act  [ creating  the  Electoral 
Commission ] to  go  into  evidence  aliunde  the  papers  opened  bg 
the  President  of  the  Senate,  in  the  'presence  of  the  two  Houses, 
to  prove  that  other  persons  than  those  regularly  certified  toby 
the  Governor  of  the  Stcde  of  Florida  in,  and  according  to  the 
determination  and  declaration  of  their  appointment  by  the  board 
of  State  canvassers  of  said  State,  prior  to  the  time  required  for 
the  performance  of  their  duties , had,  been  appointed  electors,  or, 
by  counter  proof,  to  show  that  they  had  not,  and  that  all  proceed- 
ings of  the  Courts,  or  arts  of  the  Legislature  or  of  the  Executive 
of  Florida  subsequent  to  the  casting  of  the  votes  of  the  electors 
on  the  prescribed  day,  arc  inadmissible  for  any  such  purpose 
This  decision  gave  the  vote  of  Florida  to  Mr.  Hayes  for 
President,  and  to  Mr.  Wheeler  for  Vice-President. 


The  Louisiana  Case. 

In  the  Louisiana  case  the  frauds  committed  hy  its  re- 
turning-board were  astounding.  The  number  of  votes 
cast  in  the  State  for  the  Tilden  electors,  taking  the  first 
name  on  the  list  as  representing  all,  was  83,723,  but  the 
certificate  of  the  returning-board  put  them  at  70,508, 
turning  Mr.  Tilden’s  majority  of  more  than  thirteen  thou- 
sand into  a majority  for  Mr.  Ilayes.  This  reduction  was 
made  by  throwing  out  more  than  13,000  votes  of  legal 
voters,  which  had  been  cast  for  Mr.  Tilden.  More  than 
10,000  of  these  were  thrown  out  upon  the  assumed  au- 
thority of  a statute  of  Louisiana  which,  in  terms,  gave 
the  hoard  power  to  throw  out  votes,  upon  examination 
and  deliberation,  “ whenever,  from  any  poll  or  voting- 
place,  there  should  be  received  the  statement  of  any  super- 
visor of  registration  or  commissioner  of  election,  in  form, 
as  required  hy  section  26  of  this  act,  on  affidavit  of  three 
or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  in- 
timidation, armed  disturbance,  bribery,  or  corrupt  in- 
fluences, which  prevented,  or  tended  to  prevent,  a fair, 


481 


free,  and  peaceable  vote  of  all  qualified  electors  entitled 
to  vote  at  such  poll  or  voting-place.” 

The  only  ground  upon  which  a vote  could  have  been 
thrown  out,  for  intimidation  or  other  corrupt  influence,  as 
thus  seen,  was  the  statement  of  a supervisor  of  registration 
or  commissioner  of  election,  founded  upon  the  affidavits  of 
three  citizens.  The  statements  and  affidavits  upon  which 
the  returning-board  pretended  to  justify  its  action,  vrere  al- 
leged by  counsel  to  be  forged  and  fabricated  by  persons 
acting  under  its  direction  and  with  its  knowledge;  and 
proof  of  this  allegation  was  ready  to  be  produced,  but  the 
Commission  held  it  inadmissible. 

Mr.  Abbott,  a member  of  the  Commission,  offered  the 
following  resolution : 

“ Resolved , That  evidence  is  admissible  that  the  statements  and  affidavits 
purporting  to  have  been  made  and  forwarded  to  said  returning-board  in 
pursuance  of  the  provisions  of  section  26  of  the  election  law  of  1872,  al- 
leging riot,  tumult,  intimidation,  and  violence,  at  or  near  certain  polls, 
and  in  certain  parishes,  were  falsely  fabricated  and  forged  by  certain  dis- 
reputable persons  under  the  direction  and  with  the  knowledge  of  said 
returning-board,  and  that  said  returning-board,  knowing  said  statements 
and  affidavits  to  be  false  and  forged,  and  that  none  of  the  said  statements 
or  affidavits  were  made  in  the  manner  or  form  or  within  the  time  required 
by  law,  did  knowingly,  willfully,  and  fraudulently  fail  and  refuse  to  can- 
vass or  compile  more  than  10,000  votes  lawfully  cast,  as  is  shown  by  the 
statements  of  votes  of  the  commissioners  of  election.” 

This  offer  the  Commission  rejected  by  a vote  of  8 to  7. 

The  principles  enunciated  in  his  opinion  in  the  Florida 
case,  governed  Justice  Field’s  action,  also,  in  that  of  Lou- 
isiana. In  both  of  the  cases  he  gave  his  vote  in  favor  of 
the  candidates  of  his  party,  and  unquestionably  in  favor  of 
truth  and  justice.  The  Commission  by  the  same  vote — 
8 to  7 — came  to  a result  similar  to  that  reached  in  the 
Florida  case,  as  to  the  conclusive  character  of  the  certifi- 
cates issued  by  the  Governor  of  the  State  upon  the  deter- 
mination of  the  returning-board. 

Two  of  the  persons  certified  to  have  been  chosen  as 
electors  held,  at  the  time  of  the  election,  offices  of  profit 


442 


under  the  United  States — one  being  Surveyor-General  for 
the  District  of  Louisiana,  and  the  other  being  Commissioner 
of  the  Circuit  Court  of  the  United  States  for  that  District. 
But  the  Commission  held,  by  a like  vote  of  8 to  7,  that  it 
was  “ not  competent  to  prove  that  any  of  said  persons  so  ap- 
pointed electors  as  aforesaid  [by  the  determination  of  the 
returning-board,  as  certified  by  the  Governor]  held  an  of- 
fice of  trust  and  profit  under  the  United  States  at  the  time 
when  they  were  appointed , or  that  they  were  ineligible  under  the 
laws  of  the  State,  or  any  other  matter  offered  to  be  proved 
aliunde  the  said  certificates  and  pipers.'1'  This  was  held  in 
the  face  of  the  constitutional  - provision  declaring  “ that  no 
Senator  or  Representative,  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States,  shall  be  appointed  an  elector."-  ■ 
(Art.  II.,  sec.  1.) 

This  decision  gave  the  vote  of  Louisiana  to  Mr.  Hayes 
for  President  and  to  Mr.  Wheeler  for  Vice-President. 


The  Oregon  Case. 

In  the  Oregon  case  the  Democratic  managers  claimed 
the  election  of  one  of  their  electors  on  the  ground  of  the 
constitutional  ineligibility  of  bis  opponent.  Justice  Field 
was  unable  to  go  with  them.  The  case,  in  brief,  was  this: 
Watts,  one  of  the  Hayes  electors,  was  constitutionally 
ineligible,  as  lie  held  at  the  time  of  the  election  an 
office  of  profit  under  the  LTnited  States;  and  it  was 
claimed  by  the  Democrats  that  Cronin,  who  stood  highest 
on  the  poll  of  the  opposite  side,  was,  therefore,  legally 
chosen.  The  Governor  of  Oregon  took  this  view  of  the 
case  and  certified  the  election  of  two  Republican  electors 
and  one  Democratic  elector.  The  Republicans,  however, 
claimed  that  Watts’  ineligibility  created  a vacancy  in  the 
office  which  his  associates  could  fill,  and  he  having  re- 
signed both  his  electorship  and  the  Federal  office  which 
rendered  him  ineligible  to  it,  was  elected  by  his  col- 


433 

leagues  on  the  ticket  to  fill  the  supposed  vacancy  thus 
created.  Justice  Field  was  of  opinion  that  the  clause  of 
the  Constitution  declaring  the  ineligibility  was  absolute 
and  self-operative,  but  declined  to  admit  either  of  the 
conflicting  consequences  claimed  from  it,  regarding  the 
case  as  simply  a failure  to  elect.  He  said: 

“ Me.  President  : 

“ It  appears  that  Odell,  Watts,  and  Cartwright  received  at  the  election 
in  Oregon,  in  November  last,  a higher  number  of  votes  for  electors  of 
President  and  Vice-President-  than  the  candidates  against  them.  Odell 
and  Cartwright  were  accordingly  elected ; of  that  there  is  no  question. 
Watts  would  also  have  been  elected  had  he  been  at  the  time  eligible  to 
the  office.  He  was  then  and  for  some  time  afterward  a postmaster  at 
La  Fayette,  in  the  State.  The  office  he  held  was  one  of  trust  and  profit 
under  the  United  States;  it  imposed  trusts,  and  was  one  to  which  a pe- 
cuniary compensation  was  attached.  He  was,  therefore,  ineligible  to  the 
office  of  an  elector  ; he  was  at  the  time  incapable  of  being  appointed  to 
that  office.  Such  is  the  language  of  the  Constitution,  which  declares  that 
‘ No  Senator  or  Representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elector.’  The  pro- 
hibition here  made  is  unqualified  and  absolute.  All  the  power  of  ap- 
pointment possessed  by  the  State  comes  from  the  Constitution.  The  of- 
fice of  elector  is  created  by  that  instrument.  Her  power  of  selection  is, 
therefore,  necessarily  limited  by  its  terms  ; and  from  her  choice  the  class 
designated  is  excluded.  The  object  of  the  exclusion  was  to  prevent  the 
use  of  the  patronage  of  the  Government  to  prolong  the  official  life  of 
those  in  power. 

‘‘  The  clause  in  question  is  one  that  operates  by  its  own  force.  Like  the 
prohibition  against  passing  an  ex  post  facto  law,  or  a hill  of  attainder, 
or  a law  impairing  the  obligation  of  contracts,  it  executes  itself ; it  re- 
quires no  legislation  to  carry  it  into  effect.  As  applied  to  Watts,  it  must 
he  read  as  if  his  name  were  inserted  in  the  text,  and  was  as  follows : 
'The  State  of  Oregon  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a number  of  electors  equal  to  the  whole  number  of 
Senators  aad  Representatives  to  which  the  State  may  be  entitled  in  the 
Congress  : but  Watts  shall  not  be  appointed  one  of  them.’  The  power 
to  appoint  him  not  existing  in  the  State,  the  votes  cast  for  him  availed 
nothing ; he  was  incapable  of  receiving  them.  He  was  not,  therefore, 
appointed  the  third  elector. 

u The  provision  of  the  Constitution  excluding  from  the  choice  of  the 
State  as  electors  certain  classes  of  officers  is  very  different  from  those 
provisions  which  create  a mere  personal  disqualification  to  hold  particu- 
lar offices.  Thus  the  clause  declaring  that  ‘ No  person  shall  he  a Repre- 
sentative who  shall  not  have  attained  to  the  age  of  twenty-five  years,’ 


and  the  clause  that  ‘ No  person  shall  he  a Senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,’  do  not  forbid  an  election  of  persons  thus 
disqualified  ; they  only  prohibit  them  from  holding  the  office  so  long  as 
the  disqualification  exists.  They  can  take  the  office  whenever  that 
ceases.  But  with  respect  to  electors  the  case  is  different.  There  is  an  in- 
capacity on  the  part  of  the  State  to  appoint  as  electors  certain  classes  of 
officers.  This  distinction  between  ineligibility  to  an  office  and  disquali- 
fication to  hold  the  office  is  well  marked.  The  one  has  reference  to  the 
time  of  election  or  appointment;  the  other  to  the  time  of  taking  pos- 
session of  the  office.  The  ineligibility  existing  at  the  date  of  the  elec- 
tion is  incurable  afterwards ; the  disqualification  to  hold  may  be  re- 
moved at  any  time  before  induction  into  office.  If,  therefore,  at  the  time 
of  the  election  persons  are  within  the  classes  designated,  their  appoint- 
ment is  impossible.  The  Constitution  prohibits  it,  and  unless  the  prohi- 
bition is  to  be  frittered  away  whenever  conflicting  with  the  wishes  of  po- 
litical partisans,  it  should  be  enforced  equally  with  the  provision  fixing 
the  number  of  electors.  One  clause  of  the  same  section  cannot  be  disre- 
garded any  more  than  the  other,  and  surely  the  appointment  of  a greater 
number  of  electors  than  the  State  was  entitled  to  have  would  be  a vain 
proceeding. 

“ The  ineligibility  of  Watts  was  a fact  known  to  the  Governor.  He  had 
held  the  office  of  postmaster  for  years,  and  was  in  its  possession  and  ex- 
ercise at  the  time  of  the  election.  This  was  a fact  of  public  notoriety, 
and  was  not  denied  by  any  one.  It  was  asserted  by  parties  who  protested 
against  the  issue  of  a certificate  of  election  to  him,  and  it  was  abund- 
antly proved.  Besides  this,  the  rule  of  law  is  that,  whenever  the  ineligi- 
bility of  a candidate  arises  from  his  holding  a public  office  within  the 
State,  the  people  are  chargeable  with  notice  of  the  fact.  The  Governor 
is,  of  course,  bound  by  the  Constitution,  and  whenever  the  performance 
of  a duty  devolved  upon  him  is  affected  by  the  existence  of  public  offices 
under  the  United  States,  he  may  take  notice  officially  of  such  offices  and 
ascertain  who  are  their  incumbents.  This  is  a doctrine  which  I had  not 
supposed  open  to  question.  But  I find  that  I am  mistaken ; and  I am 
told  by  some  gentlemen  on  this  Commission  that  it  was  not  competent 
for  the  Governor  to  consider  the  question  of  the  ineligibility  of  the  can- 
didate, though  made  known  to  him  in  every  possible  way  ; and  that  its 
determination  involved  the  exercise  of  judicial  functions,  with  which  he 
was  not  invested.  The  general  position  advanced  by  them  is  that  the 
duty  of  the  Governor,  as  a commissioning  officer,  is  to  issue  his  certifi- 
cate of  election  to  any  one  who  may  obtain,  according  to  the  determina- 
tion of  the  canvassers,  the  highest  number  of  votes,  however  ineligible 
the  person,  and  however  imperative  the  prohibition  may  be  agaiust  his 
taking  the  office. 

“ To  test  this  doctrine  I put  this  question  to  these  gentlemen  : Suppos- 
ing the  law  declared  that  only  white  persons  should  be  eligible  to  an  of- 
fice, and  the  highest  number  of  votes,  according  to  the  canvassers,  should 


435 


be  cast  for  a colored  mail,  would  the  Governor  be  bound  to  issue  a com- 
mission to  him  ? The  gentlemen  answered  that  he  would  be  thus  bound  ; 
that  the  Governor  could  not  in  such  case  decide  the  question  of  the  col- 
ored man’s  ineligibility.  Mr.  Senator  Thurman  put  this  further  ques- 
tion : Supposing  the  law  of  the  State  declared  that  only  males  should  be 
elected  to  an  office,  and  the  highest  number  of  votes  were  cast,  accord- 
ing to  the  report  of  the  canvassers,  for  a female,  would  the  Governor  be 
bound  to  issue  a commission  to  her?  The  gentlemen  replied,  as  before, 
that  he  would  be  thus  bound ; that  the  Governor  could  not  determine 
the  ineligibility  of  the  party  on  the  ground  of  her  sex.  There  is  some- 
thing refreshing  in  these  days  of  sham  and  pretence  to  find  men  who 
will  thus  accept  the  logic  of  their  principles,  to  whatever  result  they  may 
lead. 

“A  different  doctrine,  I think,  prevails  in  this  country.  Every  depart- 
ment of  government,  when  called  upon  to  apply  a provision  of  the  Con- 
stitution, must,  in  the  first  instance,  pass  upon  its  construction  and  de- 
termine the  extent  of  its  obligation.  A just  man  empowered  to  issue  a 
certificate  of  election  will,  it  is  true,  hesitate  to  decide  on  the  question 
of  the  ineligibility  of  a candidate,  where  there  is  any  serious  doubt  on 
the  subject,  and  for  that  reason  to  refuse  his  certificate.  He  will  in  such 
a case  leave  the  matter  to  the  determination  of  the  judicial  tribunals. 
But  where  there  is  no  doubt  on  the  subject,  and  the  language  of  the  Con- 
stitution forbidding  the  appointment  is  clear  and  imperative,  he  cannot, 
without  violating  his  oath  of  office,  disregard  its  mandate. 

“ The  law  is  laid  down  in  numerous  adjudications  in  conformity  with 
these  views.  In  the  ease  of  the  State  of  Missouri  on  the  relation  of  Bart- 
ley against  the  Governor,  which  is  cited  by  counsel,  (39  Missouri,  399,) 
the  doctrine  for  which  I contend  is  stated  with  great  clearness  and  pre- 
cision. There  a mandamus  was  prayed  against  the  Governor  to  compel 
him  to  issue  a commission  to  the  relator  as  one  of  the' justices  of  the 
County  Court.  The  Supreme  Court  refused  the  writ  on  the  ground  that 
the  issuing  of  a commission  was  the  exercise  of  political  power,  and  not 
a mere  ministerial  act.  After  reciting  that  by  the  Constitution  the  duty 
devolved  upon  the  Governor  to  commission  all  officers  not  otherwise  pro- 
vided by  law,  the  Court  said  : 

“ ; The  Governor  is  bound  to  see  that  the  laws  are  faithfully  executed, 
and  he  has  taken  an  oath  to  support  the  Constitution.  In  the  correct 
and  legitimate  performance  of  his  duty  he  must  inevitably  have  a dis- 
cretion in  regard  to  granting  commissions  ; for  should  a person  be  elected 
or  appointed  who  was  constitutionally  ineligible  to  hold  any  office  of 
profit  or  trust,  would  the  executive  be  bound  to  commission  him  when 
his  ineligibility  was  clearly  and  positively  proven  ? If  he  is  denied  the  ex- 
ercise of  any  discretion  in  such  case,  he  is  made  the  violator  of  the  Con- 
stitution, not  its  guardian.  Of  what  avail  then  is  his  oath  of  office?  Or, 
if  he  has  positive  and  satisfactory  evidence  that  no  election  has  been  held 
in  a county,  shall  he  be  required  to  violate  the  law  and  issue  a commis- 
sion to  a person  not  elected,  because  a clerk  has  certified  to  the  election? 
In  granting  a commission  the  Governor  may  go  behind  the  certificate  to 

29 


436 


determine  whether  an  applicant  is  entitled  to  receive  a commission  or 
not,  where  the  objection  to  the  right  ot'  the  applicant  to  receive  it  rests 
upon  the  ground  that  a constitutional  prohibition  is  interposed.’ 

“In  Gulick  against  New,  also  cited  by  counsel,  (14  Indiana,  93,)  the 
Supreme  Court  of  Indiana  used  language  substantially  to  the  same  effect, 
holding  that  the  Governor,  who  was  authorized  to  commission  officers, 
might  determine,  even  against  the  decision  of  a board  of  canvassers, 
whether  an  applicant  was  entitled  to  receive  a commission  or  not,  where 
the  objection  to  his  right  to  receive  it  rested  upon  a constitutional  pro- 
hibition. 

“ Other  adjudications  might  be  cited,  but  I believe  these  express  the 
law  as  recognized  generally  throughout  the  country.*  The  question 
then  arises,  Watts  being  ineligible,  whether  the  person  receiving  the 
next  highest  number  of  votes,  he  being  eligible,  was  elected.  Governor 
Grover  beld  that  such  person  was  elected  and  issued  a certificate  of 
election  to  him.  In  his  action  in  this  respect  he  followed  the  rule  which 
obtains  in  England,  where,  if  the  voters  having  knowledge  of  the  ineli- 
gibility of  a candidate  persist  in  voting  for  him,  their  votes  are  consid- 
ered as  thrown  away,  and  the  eligible  candidate  receiving  the  next  high- 
est number  of  votes  is  declared  elected.  There  are  numerous  decisions 
by  courts  of  the  highest  character  in  this  country  to  the  same  effect. 
They  have  been  cited  to  us  by  counsel  in  their  elaborate  arguments,  and 


“*  In  the  debate  which  took  place  in  the  Senate  on  the  16th  of  Decem- 
ber, 1876,  on  the  electoral  vote  of  Oregon,  Senator  Thurman  replied  to 
some  remarks  of  Senator  Morton  upon  the  action  of  Governor  Grover, 
as  follows: 

“ ‘ The  Senator  from  Indiana  says  that  the  question  whether  Watts  was 
eligible  or  not  was  a judicial  question,  and  that  the  sole  duty  of  the  Gov- 
ernor was  a ministerial  duty,  that  he  had  no  judicial  function  whatever, 
that  it  was,  therefore,  his  duty  simply  to  certify  to  the  person  who  re- 
ceived the  highest  number  of  votes.  He  states  that  in  the  most  absolute 
manner.  If  his  statement  be  correct,  then,  if,  instead  of  voting  for 
Watts,  the  voters  who  cast  their  votes  for  him  had  voted  for  Queen  Vic- 
toria, it  would  have  been  the  duty  of  the  Governor  to  issue  a certificate  of 
election  to  Her  Majesty  the  Queen  that  she  was  chosen  elector  of  Presi- 
dent and  Vice-President  for  the  State  of  Oregon It  is  very 

true  in  Oregon,  as  in  every  State  in  the  Union  and  in  the  Federal 
Government,  that  there  is  a department  of  government  which  is  called 
the  judiciary,  and  another  department  called  the  executive,  and  another 
the  legislative,  and  the  constitutions  endeavor  to  partition  out  the  great 
powers  of  government  between  these  three  departments;  but  does  it  fol- 
low from  that,  that  no  power  to  judge  in  any  case  can  be  devolved  eith  er 
upon  the  legislative  department  or  upon  the  executive  department  of  the 
government  or  an  executive  officer?  We  could  not  get  along  with  the 
government  one  day  on  such  an  idea  as  that.  The  judicial  power  which 
the  Governor  of  Oregon  cannot  exercise,  which  the  Legislature  cannot  ex- 
ercise ; the  judicial  power  that  Congress  cannot  exercise,  that  the  Presi- 
dent cannot  exercise,  is  the  power  of  deciding  litigated  cases  that  arise 
in  jurisprudence,  and  is  a wholly  different  thing  from  the  exercise  of  that 
quasi-judical  power  which  executive  officers  are  called  upon  every  day  to 
exercise  and  which  they  must  exercise,’ 


437 


in  view  of  them  an  honorable  and  conscientious  man  might  well  have 
acted  as  the  Governor  did.  But  I do  not  yield  my  assent  to  them  ; they 
are  not  in  harmony  with  the  spirit  of  our  system  of  elections.  The 
theory  of  our  institutions  is  that  the  majority  must  govern ; and 
their  will  can  only  be  carried  out  by  giving  the  offices  to  those  for 
whom  they  have  voted.  In  accordance  with  this  view,  the  weight  of 
judicial  opinion  in  this  country  is,  that  votes  given  for  an  ineligible 
candidate  are  merely  ineffectual  to  elect  him,  and  that  they  are  not  to 
be  thrown  out  as  blanks,  and  the  election  given  to  the  eligible  candidate 
having  the  next  highest  number  of  votes.  It  is  fairer  and  more  just  to 
thus  limit  the  operation  of  votes  for  an  ineligible  candidate  than  to  give 
them,  as  said  in  the  California  case,  ‘ the  effect  of  disappointing  the 
popular  will  and  electing  to  office  a man  whose  pretensions  the  people 
had  designed  to  reject.’ — (Saunders  vs.  Haynes,  13  California,  151.) 

I cannot,  therefore,  vote  that  Cronin,  the  candidate  having  the  next 
highest  number  of  votes  to  Watts,  1 was  duly  appointed  ’ an  elector  of 
the  State  at  the  election  in  November.  As  there  was,  in  my  opinion,  a 
failure  to  appoint  a third  elector,  the  question  arises  whether  a vacancy 
was  thus  produced  which  the  other  electors  could  fill.  In  a general 
sense,  an  office  may  be  said  to  be  vacant  when  it  is  not  filled,  though 
this  condition  arise  from  non-election,  or  the  death,  resignation,  or  re- 
moval of  an  incumbent.  Cases  have  been  cited  before  us  where  the 
term  ‘ vacancy  ’ is  used  in  both  these  senses.  Bat  the  question  for  us 
to  decide  is  whether  there  was  a vacancy  within  the  meaning  of  the 
legislation  of  Congress.  That  legislation  distinguishes  between  cases 
of  non-election  and  cases  of  vacancy,  evidently  treating  the  latter  as 
only  occurring  after  the  office  has  once  been  filled.  I refer  to  sections  133 
and  134  of  the  Revised  Statutes,  which  are  as  follows: 

Sec.  133.  Each  State  may  by  law  provide  for  the  filling  of  any  va- 
cancies which  may  occur  in  its  College  of  Electors,  when  such  college  meets 
to  give  its  electoral  vote. 

“ ‘ Sec.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of 
choosing  electors,  and  has  failed  to  make  a choice  on  the  day  prescribed 
by  law,  the  electors  may  be  appointed  on  a subsequent  day  in  such  man- 
ner as  the  Legislature  of  such  State  may  direct.’ 

“ Under  this  legislation  the  State  of  Oregon  h is  provided  for  filling 
vacancies  in  its  Electoral  College,  treating,  as  does  Congress,  a vacancy  as 
arising  only  after  the  office  has  once  been  filled.  Its  cole  of  general 
laws  declares  when  vacancies  in  any  office  shall  be  deemed  to  have  oc- 
curred, as  follows : 

" • Every  office  shall  become  vacant  on  the  occurring  of  either  of  the 
following  events  before  the  expiration  of  the  term  of  such  office: 

‘“1.  The  death  of  the  incumbent ; 

“ ‘ ‘2.  His  resignation  ; 

‘“3.  His  removal ; 

‘■‘4.  His  ceasing  to  be  an  inhabitant  of  the  district,  county,  town,  or 
village  for  which  he  shall  have  been  elected  or  appointed,  or  within  which 
the  duties  of  his  office  are  required  to  be  discharged; 


438 


“‘5.  His  conviction  of  an  infamous  crime,  or  of  any  offence  involving 
a violation  of  his  oath  ; 

“ 1 6.  His  refusal  or  neglect  to  take  his  oath  of  office,  or  to  give  or  re- 
new his  official  bond,  or  to  deposit  such  oath  or  bond  within  the  time 
prescribed  by  law  ; 

“ ‘ 7.  The  decision  of  a competent  tribunal  declaring  void  his  election 
or  appointment.’ — ( General  Laws  of  Oregon,  page  576,  section  48.) 

“ On  the  subject  of  vacancies  in  the  Electoral  College,  the  same  code  of 
general  laws  provides  that  when  the  electors  convene — 

“ ‘ If  there  shall  be  auy  vacancy  in  the  office  of  an  elector,  occasioned 
by  death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the  electors  pres- 
ent shall  immediately  proceed  to  till,  by  viva  voce  and  plurality  of  votes, 
such  vacancy  in  the  Electoral  College.’ — (General  Laws  of  Orygon,  page 
578,  section  59.) 

“ It  seems  evident  from  these  provisions  that  there  could  be  no  vacancy 
in  the  office  of  elector  unless  the  office  had  once  been  filled.  The  events 
upon  the  occurrence  of  which  the  statute  declares  that  a vacancy  shall 
occur  in  any  office,  all  imply  the  existence  of  a previous  incumbent. 

“ The  word  ‘ otherwise,’  used  with  respect  to  a vacancy  in  the  Electoral 
College,  does  not  enlarge  the  scope  of  that  term.  The  code  having 
enumerated  under  one  title  the  events  upon  which  a vacancy  may  arise, 
including  death,  resignation,  and  other  causes,  proceeds  to  declare,  under 
another  title  of  the  same  chapter,  that  when  a vacancy  occurs  in  the  of- 
fice of  elector  by  death,  refusal  to  act,  or  otherwise,  meaning  thereby  any 
other  cause  which  would  remove  an  incumbent,  the  electors  present  may 
fill  the  vacancy.  As  here  there  never  had  been  an  incumbent,  there  could 
be  no  vacancy,  in  the  sense  of  the  statute,  by  death  or  otherwise. 

“ The  two  electors,  Odell  and  Cartwright,  undertook  to  appoint  Watts 
as  the  third  elector,  upon  the  assumption  that  he  had  resigned  the  office, 
and  that  a vacancy  was  thereby  created.  But  inasmuch  as  he  had  never 
been  elected,  he  had  nothing  to  resign.  The  case  was  not  one  of  a va- 
cancy, but  of  a failure  to  elect ; and  the  Legislature  of  the  State  had 
made  no  provision  for  a subsequent  election  in  case  of  such  failure,  as  it 
might  have  done  under  the  legislation  of  Congress.” 


It  followed  from  these  views  that  there  were  only  two 
electors  duly  appointed  by  Oregon,  and  that,  therefore, 
only  two  electoral  votes  from  that  State  could  be  counted. 

Justice  Field  ottered  before  the  Commission  three  reso- 
lutions embodying  the  views  thus  expressed,  but  they  were 
all  rejected  by  a vote  of  eight  to  seven;  and  by  that  vote 
the  Commission  held:  “ Thai  though  the  evidence  showed 
that  Watts  was  a postmaster  at  the  time  of  his  election,  that  fact 
was  rendered'  immaterial  hg  his  resignation  both  as  postmaster 


439 


and  elector  and  his  subsequent  appointment  to  fill  the  vacancy 
made  by  the  Electoral  College .” 

Three  votes,  instead  of  two,  from  Oregon,  were,  there- 
fore, counted  for  Mr.  Hayes  as  President  and  for  Mr. 
Wheeler  as  Vice-President. 


The  South  Carolina  Case. 

The  principal  objections  to  the  count  of  the  electoral 
vote  of  South  Carolina  were,  that  there  had  been  no  reg- 
istration of  persons  entitled  to  vote,  as  required  by  the 
constitution  of  the  State;  that  the  General  Government, 
without  authority  of  law,  had  stationed,  prior  to  and 
during  the  election,  in  various  parts  of  the  State,  at  or 
near  the  polling  places,  detachments  of  the  army  of  the 
United  States,  by  whose  presence  the  free  exercise  of  the 
right  of  suffrage  was  prevented,  and  a fair  election  be- 
came impossible;  and  that  over  a thousand  deputy  mar- 
shals had  been  stationed  at  the  polling  places,  who,  by 
their  arbitrary  and  illegal  action,  in  obedience  to  the  De- 
partment of  Justice,  had  so  interfered  with  the  exercise 
of  the  right  of  suffrage  that  a fair  election  was  impossible. 

On  the  hearing  before  the  Commission  proof  was  ready 
to  be  produced  to  establish  these  objections,  but  the  Com- 
mission ruled  it  inadmissible. 

Justice  Field  offered  the  following  resolutions: 

“ Resolved , That  evidence  is  admissible  to  show  that  prior  to  and  dur- 
ing the  election  on  the  7th  day  of  November,  1876,  in  the  State  of  South 
Carolina,  there  were  unlawfully  stationed  in  various  parts  of  the  State, 
at  or  near  the  polling  places,  detachments  of  the  troops  of  the  army  of  the 
United  States,  by  whose  presence  and  interference  qualified  voters  of  the 
State  were  deprived  of  the  right  of  suffrage,  and  a free  choice  by  the  peo- 
ple of  Presidential  electors  was  prevented. 

“Resolved,  That  evidence  is  admissible  to  show  that  at  the  election  on 
the  7th  day  of  November,  1876,  in  South  Carolina,  there  were  stationed 
at  the  several  polling  places  deputy  marshals  of  the  United  States  exceed- 
ing one  thousand  in  number,  by  whose  unlawful  action  and  interference, 
under  orders  from  the  Department  of  Justice,  qualified  voters  of  the  State 
were  deprived  of  the  right  of  suffrage,  and  a free  choice  by  the  people  of 
Presidential  electors  was  prevented.” 


440 


These  were  rejected  by  a vote  of  eight  to  seven ; and 
the  Commission  resolved  by  a like  vote,  as  follows: 

“That  it  is  not  competent  for  the  two  Houses  of  Con- 
gress when  assembled  to  count  the  votes  for  President 
and  Vice-President,  by  taking  evidence,  to  inquire  into 
the  regularity  of  the  action  of  the  President  of  the  United 
States  in  sending  a military  force  into  any  State  for  the 
preservation  of  order  or  the  suppression  of  insurrection 
and  domestic  violence,  in  order  by  such  proof  to  lay  a 
ground  for  rejecting  the  electoral  vote  of  said  State;” 
and,  also,  that  there  existed  “ no  power  in  this  Commis- 
sion, as  there  exists  none  in  the  two  Houses  of  Congress, 
in  counting  the  electoral  vote,  to  inquire  into  the  circum- 
stances under  which  the  primary  vote  for  electors  was 
given.” 

The  vote  of  South  Carolina  was  accordingly  cast  for  Mr. 
Haves  as  President  and  for  Mr.  Wheeler  as  Vice-Presi- 
dent. 

The  votes  of  the  four  States  of  Florida,  Louisiana,  Ore- 
gon, and  South  Carolina  being  all  counted  for  these  gentle- 
men under  the  rulings  of  the  Commission,  they  were  de- 
clared by  Congress  elected  by  a majority  of  one  vote. 

The  general  disappointment  throughout  the  country  at 
the  action  of  the  Commission  was  well  expressed  in  the  fol- 
lowing article  from  the  Public  Ledr/er  and  Daily  Transcript , 
of  Philadelphia,  of  February  19th,  1877,  which  appeared 
whilst  the  Commission  was  in  session,  but  after  its  decision 
on  the  Florida  and  Louisiana  cases.  That  paper,  though 
not  a partisan  journal,  has  always  been  of  strong  Republi- 
can proclivities  : 

“Counting  the  Electoral  Vote. 

“ There  is  reason  for  the  strong  dissatisfaction  expressed  concerning  the 
course  of  the  majority  of  the  Electoral  Commission.  There  is  just  cause 
for  complaint,  not  because  they  have  awarded  the  votes  of  Florida  and 
Louisiana  to  Governor  Hayes,  but  because  of  their  persistent  refusal  to 
inquire  into  the  truth  of  the  certificates  which  covered  those  votes. 
Thus  far  their  inquiries  and  their  decisions,  when  reduced  to  plain  terms, 


441 


amount  to  nothing  more  than  this : that  Stearns  was  Governor  of  Florida 
on  the  6th  of  December  last,  and  that  Kellogg  was  de  facto  Governor  of 
Louisiana  on  the  same  date.  It  did  not  require  the  creation  of  a high 
and  extraordinary  Commission  like  that  now  in  session  to  inquire  into  and 
decide  historical  facts  like  these.  They  were  beyond  dispute,  and  were 
not  disputed.  The  Commission  was  created,  under  circumstances  of  the 
utmost  solemnity,  to  inquire  and  decide  whether  such  certificates  as  those 
given  by  Stearns  and  Kellogg  did  actually  certify  to  the  truth,  and 
whether  the  electors  named  in  those  certificates  were  in  truth  and  in  law 
the  electors  who  received  majorities  of  the  lawful  votes  of  Florida  and 
Louisiana.  This  the  majority  of  the  Commission  have  continuously  re- 
fused to  do,  and  taking  their  stand  on  bare  technicalities,  have  abdicated 
the  very  jurisdiction  aud  action  they  were  brought  into  existence  to  ex- 
ercise. Without  the  belief  that  they  would  exercise  it,  the  Commission 
could  have  had  no  existence.  It  was  that  belief  that  made  the  appoint- 
ment of  the  Commission  a possibility,  and  caused  its  appointment  to  be 
hailed  with  welcome  and  confidence  throughout  the  United  States. 

“ This  is  said  with  profound  regret.  It  is  mortifyiug  to  be  obliged  to 
say  it  in  the  columns  of  a journal  which  was  among  the  foremost  in  aid- 
ing to  create  the  Commission,  and  Which,  in  fact,  sketched  its  outlines 
long  before  the  law  took  shape  anywhere  else.  We  certainly  understood 
that  the  Commission  was  to  inquire  into  the  very  truth  and  right  of  the 
disputed  votes  in  Florida  and  Louisiana,  aud  that  the  decision  of  the 
Commission  was  to  be  given  upon  the  merits  after  that  inquiry,  and  not 
upon  bald  technicalities.  The  law  gives  to  the  Commission  all  the  powers 
possessed  in  the  premises  by  the  two  Houses  of  Congress,  aud  to  take  into 
view  such  evidence  as  might  be  competent  and  pertinent.  This  portion 
of  the  law  certainly  means  something : it  means  precisely  what  it  says, 
and  was  universally  understood  to  mean  that  the  Commission  were  to  in- 
quire whether  the  papers  from  Florida  and  Louisiana,  purporting  to  be 
votes,  are  in  fact  votes  or  false  pretences,  hut  the  majority  of  the  Com- 
mission have  treated  that  part  of  the  law  as  if  it  means  nothing,  by  re- 
fusing to  make  that  inquiry. 

“ This  tribunal  was,  from  the  outset,  trusted  with  the  patriotic  hopes 
and  honored  with  the  fullest  confidence  of  three-fourths  of  the  people  of 
the  United  States,  in  the  belief  that  the  solemn  circumstances  attending 
the  necessity  and  the  act  that  brought  it  into  being,  would  cause  all  its 
members  (with  possibly  three  exceptions)  to  rise  above  all  party  consid- 
erations in  the  discharge  of  their  momentous  duty.  In  the  light  of  this 
antecedent  hope  and  confidence,  and  in  view  of  the  votes  written  on  the 
record  of  the  Commission,  it  is  pitiable  to  observe  that  every  important 
question  thus  far  submitted  to  the  Commission  has  divided  the  Commis- 
sioners, eight  to  seven,  on  strict  party  lines,  accordingly  as  the  decision 
would  help  the  case  of  Governor  Hayes,  or  hurt  the  case  of  Governor 
Tilden.  It  was  not  believed  by  fairminded,  intelligent  men  that  such  a 
division  could  come  about.  The  outside  adherents  of  each  party  mutu- 


442 


ally  charge  this  as  a discredit  on  the  opposing  members  of  the  Commis- 
sion. The  zealous  Democrats  reproach  the  Republicans  with  these  par- 
tisan votes  of  the  eight  Republican  Commissioners,  and  the  zealous  Re- 
publicans retort  by  pointing  to  the  partisan  votes  of  the  seven  Democrats 
on  the  Commission.  This  is  about  what  might  be  expected  from  that 
kind  of  discussion.  But  that  which  will  live  in  history  and  in  the  minds 
of  the  vast  majority  of  the  public  is  this : that  the  seven  voted  to  look 
into  the  evidence,  voted  to  take  testimony,  and  voted  to  let  in  light,  so 
as  to  get  at  the  truth ; and  that  the  eight  voted  all  the  time  to  turn 
away  from  evidence,  to  shut  out  the  light,  and  so  to  close  the  door  upon 
all  effort  to  find  the  truth.  The  seven  voted  in  a way  to  promote  the 
great  object  for  which  the  Commission  was  created;  the  eight  voted  in  a 
way  to  make  the  Commission  utterly  useless  for  the  principal  purpose 
for  which  it  has  any  reason  for  being  in  existence  at  all.  The  Senator, 
the  Judge,  the  Presidential  aspirant,  the  party  that  supposes  the  eyes  of 
the  American  people  can  be  closed  to  this  vital  aspect  of  the  matter  is 
making  a signal  and  perilous  mistake.  The  American  people  know  what 
is  honorable,  fair,  manly,  and  just;  and  their  ultimate  decisions  always 
show  that  they  not  only  know,  but  that  they  act  upon  their  knowl- 
edge.” 


/ 


APPENDIX 


THE  UNCONSTITUTIONALLY  OF  TEST  OATHS 
FOR  PAST  CONDUCT. 


THE  OPINIONS  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES 


IN 


CUMMINGS  vs.  THE  STATE  OF  MISSOURI 

AND  IN 


EX-PARTE  GARLAND. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


John  A.  Cummings,  Plaintiff  in  Error, 

vs. 

The  State  of  Missouri. 


Mr.  Justice  Field  delivered  the  opinion  of  the  Court.* 

This  case  comes  before  us  on  a writ  of  error  to  the  Supreme  Court  of 
Missouri,  and  involves  a consideration  of  the  test  oath  imposed  by  the 
constitution  of  that  State.  The  plaintiff  in  error  is  a priest  of  the  Ro- 
man Catholic  Church,  and  was  indicted  and  convicted  in  one  of  the  Cir- 
cuit Courts  of  the  State  of  the  crime  of  teaching  and  preaching  as  a 
priest  and  minister  of  that  religious  denomination  without  having  first 
taken  the  oath,  and  was  sentenced  to  pay  a fine  of  five  hundred  dollars, 
and  to  he  committed  to  jail  until  the  same  was  paid.  On  appeal  to  the 
Supreme  Court  of  the  State  the  judgment  was  affirmed. 

The  oath  prescribed  by  the  constitution,  divided  into  its  separate  parts, 
embraces  more  than  thirty  distinct  affirmations  or  tests.  Some  of  the 
acts,  against  which  it  is  directed,  constitute  offences  of  the  highest  grade, 
to  which,  upon  conviction,  heavy  penalties  are  attached.  Some  of  the 
acts  have  never  been  classed  as  offences  in  the  laws  of  any  State  ; and 
some  of  the  acts,  under  many  circumstances,  would  not  even  be  blame- 
worthy. It  requires  the  affiant  to  deny  not  only  that  he  has  ever  “ been 
in  armed  hostility  to  the  United  States,  or  to  the  lawful  authorities 
thereof,”  but,  among  other  things,  that  he  has  ever,  “ by  act  or  word,” 
manifested  his  adherence  to  the  cause  of  the  enemies  of  the  United  States, 
foreign  or  domestic,  or  his  desire  for  their  triumph  over  the  arms  of  the 
United  States,  or  his  sympathy  with  those  engaged  in  rebellion,  or  has 
ever  harbored  or  aided  any  person  engaged  in  guerrilla  warfare  against  the 
loyal  inhabitants  of  the  United  States,  or  has  ever  entered  or  left  the 
State  for  the  purpose  of  avoiding  enrollment  or  draft  in  the  military  ser- 
vice of  the  United  States;  or,  to  escape  the  performance  of  duty  in  the 


* Delivered  at  the  December  Term,  1866,  and  reported  in  4th  Wallace, 
Sup.  Ct.  Reports,  316. 


446 


militia  of  the  United  States,  has  ever  indicated,  in  any  terms,  his  dis- 
affection to  the  government  of  the  United  States  in  its  contest  with  the 
rebellion. 

Every  person  who  is  unable  to  take  this  oath  is  declared  incapable  of 
holding,  in  the  State,  “ any  office  of  honor,  trust,  or  profit  under  its  au- 
thority, or  of  being  an  officer,  councilman,  director,  or  trustee,  or  other 
manager  of  any  corporation,  public  or  private,  now  existing  or  hereafter 
established  by  its  authority,  or  of  acting  as  a professor  or  teacher  in  any 
educational  institution,  or  in  any  common  or  other  school,  or  of  holding 
any  real  estate  or  other  property  in  trust  for  the  use  of  any  church,  re- 
ligious society,  or  congregation.” 

And  every  person  holding,  at  the  time  the  constitution  takes  effect, 
any  of  the  offices,  trusts,  or  positions  mentioned,  is  required  within  sixty 
days  thereafter  to  take  the  oath  ; and,  if  he  fail  to  comply  with  this  re- 
quirement, it  is  declared  that  his  office,  trust,  or  position  shall  ipso  facto 
become  vacant. 

No  person,  after  the  expiration  of  the  sixty  days,  is  permitted,  without 
taking  the  oath,  “to  practice  as  an  attorney  or  coutisellor-at-law,  norafter 
that  period  can  any  person  he  competent,  as  a bishop,  priest,  deacon, 
minister,  elder,  or  other  clergyman,  of  any  religious  persuasion,  sect,  or 
denomination,  to  teach,  or  preach,  or  solemnize  marriages.” 

Fine  and  imprisonment  are  prescribed  as  a punishment  for  holding  or 
exercising  any  of  “ the  offices,  positions,  trusts,  professions,  or  functions  ” 
specified,  without  having  taken  the  oath;  and  false  swearing  or  affirma- 
tion in  taking  it  is  declared  to  he  perjury,  punishable  by  imprisonment 
in  the  penitentiary. 

The  oath  thus  required  is,  for  its  severity,  without  any  precedent  that 
we  can  discover.  In  the  first  place,  it  is  retrospective  ; it  embraces  all  the 
past  from  this  day;  and,  if  taken  years  hence,  it  will  also  cover  all  the 
intervening  period.  In  its  retrospective  feature  we  believe  it  is  peculiar 
to  this  country.  In  England  and  France  there  have  been  test  oaths,  but 
they  were  always  limited  to  an  affirmation  of  present  belief,  or  present  dis- 
position towards  the  government,  and  were  never  exacted  with  reference  to 
particular  instances  of  past  misconduct.  In  the  second  place,  the  oath  is 
directed  not  merely  against  overt  and  visible  acts  of  hostility  to  the  gov- 
ernment, but  is  intended  to  reach  words,  desires,  and  sympathies  also. 
And,  in  the  third  place,  it  allows  no  distinction  between  acts  springing 
from  malignant  enmity  and  acts  which  may  have  been  prompted  by 
charity,  or  affection,  or  relationship.  If  one  has  expressed  sympathy 
with  any  who  were  drawn  into  the  rebellion,  even  if  the  recipients  of 
that  sympathy  were  connected  by  the  closest  ties  of  blood,  he  is  as  unable 
to  subscribe  to  the  oath  as  the  most  active  and  the  most  cruel  of  the 
rebels,  and  is  equally  debarred  from  the  offices  of  honor  or  trust,  and  the 
positions  and  employments  specified. 

But,  as  it  was  observed  by  the  learned  counsel  who  appeared  on  behalf 
of  the  State  of  Missouri,  this  Court  cannot  decide  the  case  upon  the  just- 


447 


ice  or  hardship  of  these  provisions.  Its  duty  is  to  determine  whether 
they  are  in  conflict  with  the  Constitution  of  the  United  States.  On  be- 
half of  Missouri,  it  is  urged  that  they  only  prescribe  a qualification  for 
holding  certain  offices,  and  practicing  certain  callings,  and  that  it  is, 
therefore,  within  the  power  of  the  State  to  adopt  them.  On  the  other  hand, 
it  is  contended  that  they  are  in  conflict  with  the  Constitution  which  for- 
bids any  State  to  pass  a bill  of  attainder  or  an  ex  post  facto  law. 

"We  admit  the  propositions  of  the  counsel  of  Missouri,  that  the  States 
which  existed  previous  to  the  adoption  of  the  Federal  Constitution  pos- 
sessed originally  all  the  attributes  of  sovereignty ; that  they  still  retain 
those  attributes,  except  as  they  have  been  surrendered  by  the  formation 
of  the  Constitution,  and  the  amendments  thereto  ; that  the  new  States, 
upon  their  admission  into  the  Union,  became  invested  with  equal  rights, 
and  were  thereafter  subject  only  to  similar  restrictions,  and  that  among 
the  rights  reserved  to  the  States  is  the  right  of  each  State  to  determine 
the  qualifications  for  office,  and  the  conditions  upon  which  its  citizens 
may  exercise  their  various  callings  and  pursuits  within  its  jurisdiction. 

These  are  general  propositions  and  involve  principles  of  the  highest 
moment.  But  it  by  no  means  follows  that  under  the  form  of  creating 
a qualification  or  attaching  a condition,  the  States  can  in  effect  inflict  a 
punishment  for  a past  act  which  was  not  punishable  at  the  time  it  was 
committed.  The  question  is  not  as  to  the  existence  of  the  power  of  the 
State  over  matters  of  internal  police,  but  whether  that  power  has  been 
made  in  the  present  case  an  instrument  for  the  infliction  of  punishment 
against  the  inhibition  of  the  Constitution. 

Qualifications  relate  to  the  fitness  or  capacity  of  the  party  for  a par- 
ticular pursuit  or  profession.  Webster  defines  the  term  to  mean  “ any 
natural  endowment  or  any  acquirement  which  fits  a person  fora  place,  of- 
fice, or  employment,  or  enables  him  to  sustain  any  character  with  success.” 
It  is  evident  from  the  nature  of  the  pursuits  and  professions  of  the  par- 
ties, placed  under  disabilities  by  the  constitution  of  Missouri,  that  many 
of  the  acts,  from  the  taint  of  which  they  must  purge  themselves,  have 
no  possible  relation  to  their  fitness  for  those  pursuits  and  professions. 
There  can  be  no  connection  between  the  fact  that  Mr.  Cummings  entered 
or  left  the  State  of  Missouri  to  avoid  enrollment  or  draft  in  the  military 
service  of  the  United  States  and  his  fitness  to  teach  the  doctrines  or  ad- 
minister the  sacraments  of  his  church  ; nor  can  a fact  of  this  kind,  or 
the  expression  of  words  of  sympathy  with  some  of  the  persons  drawn  into 
the  rebellion,  constitute  any  evidence  of  the  unfitness  of  the  attorney  or 
counsellor  to  practice  his  profession,  or  of  the  professor  to  teach  the  ordi- 
nary branches  of  education,  or  of  the  want  of  business  knowledge 
or  business  capacity  in  the  manager  of  a corporation,  or  in  any  di- 
rector or  trustee.  It  is  manifest  upon  the  simple  statement  of  many 
of  the  acts  and  of  the  professions  and  pursuits,  that  there  is  no 
such  relation  between  them  as  to  render  a denial  of  the  commission  of 
the  acts  at  all  appropriate  as  a condition  of  allowing  the  exercise  of  the 


448 


professions  and  pursuits.  The  oatli  could  not,  therefore,  have  been  re- 
quired as  a means  of  ascertaining  whether  parties  were  qualified  or  not 
for  their  respective  callings  or  the  trusts  with  which  they  wex-e  charged. 
It  was  required  in  order  to  reach  the  person,  not  the  calling.  It  was  ex- 
acted, not  from  any  notion  that  the  several  acts  designated  indicated  un- 
fitness for  the  callings,  but  because  it  was  thought  that  the  several  acts 
deserved  punishment,  and  that  for  many  of  them  there  was  no  way  to 
inflict  punishment  except  by  depriving  the  parties,  who  bad  committed 
them,  of  some  of  the  rights  and  privileges  of  the  citizen. 

The  disabilities  created  by  the  constitution  of  Missouri  must  be  re- 
garded as  penalties ; they  constitute  punishment.  We  do  not  agree  with 
the  counsel  of  Missouri  that  “ to  punish  one  is  to  deprive  him  of  life, 
liberty,  or  property,  and  that  to  take  from  him  anything  less  than  these 
is  no  punishment  at  all.”  The  learned  counsel  does  not  use  these  terms, 
life,  liberty,  and  property,  as  comprehending  every  right  known  to  thelaw. 
He  does  not  include  under  liberty  freedom  from  outrage  on  the  feelings 
as  v'ell  as  restraints  on  the  person.  He  does  not  include  under  property 
those  estates  which  one  may  acquire  in  professions,  though  they  are  often 
the  source  of  the  highest  emoluments  and  honors.  The  deprivation  of 
any  rights,  civil  or  political,  previously  enjoyed,  may  be  punishment, 
the  circumstances  attending  and  the  causes  of  the  deprivation  determin- 
ing this  fact.  Disqualification  from  office  may  be  punishment,  as  in 
cases  of  conviction  upon  impeachment.  Disqualification  from  the  pur- 
suits of  a lawful  avocation,  or  from  positions  of  trust,  or  from  the  privi- 
lege of  appearing  in  the  courts,  or  acting  as  an  executor,  administrator, 
or  guardian,  may  also  and  often  has  been,  imposed  as  punishment.  By 
statutes  9 and  10  William  III.,  chap.  32,  if  any  person  educated  in  or 
having  made  a profession  of  the  Christian  religion,  did.  “ by  writing,  print- 
ing, teaching,  or  advised  speaking,”  deny  the  truth  of  the  religion,  or  the 
divine  authority  of  the  Scriptures,  he  was  for  the  first  offence  rendered 
incapable  to  hold  any  office  or  place  of  trust ; and  for  the  second  he  was 
rendered  incapable  of  bringing  any  action,  being  guardian,  executor,  lega- 
tee, or  purchaser  of  lands,  besides  being  subjected  to  three  years  imprison- 
ment without  bail.* 

By  statute  1 George  I.,  chap.  13,  contempts  against  the  King’s  title,  aris- 
ing from  refusing  or  neglecting  to  take  certain  prescribed  oaths,  and  yet 
acting  in  an  office  or  place  of  trust  for  which  they  were  required,  were 
punished  by  incapacity  to  hold  any  public  office;  to  prosecute  any  suit ; 
to  be  guardian  or  executor;  to  take  any  legacy  or  deed  of  gift;  and  to 
vote  at  any  election  for  members  of  Parliament : and  the  offender  was 
also  subject  to  a forfeiture  of  five  hundred  pounds  to  any  one  wdio  would 
sue  for  the  same.f 

“ Some  punishments,”  says  Blackstone,  “ consist  in  exile  or  banishment 
by  abjuration  of  the  realm  or  transportation;  others  in  loss  of  liberty 


•*  4 Blackstone,  44. 


f Ibid.,  124. 


449 


by  perpetual  or  temporary  imprisonment.  Some  extend  to  confiscation 
by  forfeiture  of  lands  or  movables,  or  both,  or  of  the  profits  of  lands  for  life  ; 
others  induce  a disability  of  holding  offices  or  employments,  being  heirs, 
executors,  and  the  like.”* 

In  France  deprivation  or  suspension  of  civil  rights,  or  of  some  of  them, 
and  among  these  of  the  right  of  voting,  of  eligibility  to  office,  or  of  tak- 
ing part  in  family  councils,  of  being  guardian  or  trustee,  of  bearing  arms, 
and  of  teaching  or  being  employed  in  a school  or  seminary  of  learning, 
are  punishments  prescribed  by  her  code. 

The  theory  upon  which  our  political  institutions  rest  is.  that  all  men 
have  certain  inalienable  rights ; that  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness ; and  that  in  the  pursuit  of  happiness  all  avoca- 
tions, all  honors,  all  positions  are  alike  open  to  every  one,  and  that  in  the 
protection  of  these  rights  all  are  equal  before  the  law.  Any  deprivation 
or  suspension  of  any  of  these  rights  for  past  conduct  is  punishment,  and 
can  be  in  no  otherwise  defined. 

Punishment  not  being,  therefore,  restricted,  as  contended  by  counsel, 
to  the  deprivation  of  life,  liberty,  or  property,  but  also  embracing  depri- 
vation or  suspension  of  political  or  civil  rights,  and  the  disabilities  pre- 
scribed by  the  provisions  of  the  Missouri  constitution,  being  in  effect 
punishment,  we  proceed  to  consider  whether  there  is  any  inhibition  in  the 
Constitution  of  the  United  States  against  their  enforcement. 

The  counsel  for  Missouri  closed  his  argument  in  this  case  by  presenting 
a striking  picture  of  the  struggle  for  ascendency  in  that  State  during  the 
recent  rebellion,  between  the  friends  and  enemies  of  the  Union,  and  of 
the  fierce  passions  which  that  struggle  aroused.  It  was  in  the  midst  of 
the  struggle  that  the  present  constitution  was  framed,  although  it  was 
not  adopted  by  the  people  until  the  war  had  closed.  It  would  have  teen 
strange,  therefore. had  it  not  exhibiled  in  its  provisions  some  tracesof  the 
excitement  amidst  which  the  convention  held  its  deliberations. 

It  was  against  the  excited  action  of  the  States  under  such  influences 
as  these  that  the  framers  of  the  Federal  Constitution  intended  to  guard. 
In  Fletcher  vs.  Peck,f  Mr.  Chief  Justice  Marshall,  speaking  of  such  ac- 
tion, uses  this  language  : “ Whatever  respect  might  have  been  felt  for  the 
State  sovereignties,  it  is  not  to  be  disguised  that  the  framers  of  the  Consti- 
tution viewed  with  some  appieliension  the  violent  acts  which  might  grow 
out  of  the  feelings  of  the  moment ; and  that  the  people  of  the  United 
States,  in  adopting  that  instrument,  have  manifested  a determination  to 
shield  themselves  and  their  property  from  the  effects  of  those  sudden  and 
strong  passions  to  which  men  are  exposed.  The  restrictions  on  the  legis- 
lative power  of  the  States  are  obviously  founded  in  this  sentiment ; and 
the  Constitution  of  the  United  States  contains  what  may  be  deemed  a 
bill  of  rights  for  the  people  of  each  State.” 

“ ' No  State  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts.’” 

* 4 Vol.,  377. 


f 6 Craneh,  137, 


450 


A bill  of  attainder  is  a legislative  act  which  inflicts  punishment  with- 
out a judicial  trial.  If  the  punishment  be  less  than  death  the  act  is 
termed  a hill  of  pains  and  penalties.  Within  the  meaning  of  the  Con- 
stitution, lulls  of  attainder  include  hills  of  pains  and  penalties.  In  these 
cases  the  legislative  body,  in  addition  to  its  legitimate  functions  exercises 
the  powers  and  office  of  a judge;  it  assumes,  in  the  language  of  the  text- 
books, judicial  magistracy;  it  pronounces  upon  the  guilt  of  the  party 
without  any  of  the  forms  or  safeguards  of  trial ; it  determines  the  suffi- 
ciency of  the  proofs  produced,  whether  conformable  to  the  rules  of  evi- 
dence or  otherwise ; and  it  Axes  the  degree  of  punishment  in  accordance 
with  its  own  notions  of  the  enormity  of  the  offence. 

“ Bills  of  this  sort,”  says  Mr.  Justice  Story,  “ have  been  most  usually 
passed  in  England  in  times  of  rebellion  or  gross  subserviency  to  the 
Crown,  or  of  violent  political  excitements  ; periods,  in  which  all  nations 
are  most  liable  (as  well  the  free  as  the  enslaved)  to  forget  their  duties, 
and  to  trample  upon  the  rights  and  liberties  of  others.”* 

These  bills  are  generally  directed  against  individuals  by  name,  but  they 
may  be  directed  against  a whole  class.  The  bill  against  the  Earl  of  Kil- 
dare and  others,  passed  in  the  reign  of  Henry  VIII., f enacted  that  “ all 
such  persons  which  be  or  heretofore  have  heen  comforters,  abettors,  par- 
takers, confederates,  or  adherents  unto  the  said  ” late  earl,  and  certain 
other  parties  who  were  named,  “ in  his  or  their  false  or  traitorous  acts 
and  purposes,  shall  in  likewise  stand,  and  be  attainted,  adjudged,  and 
convicted  of  high  treason;”  and  that  “the  same  attainder,  judgment,  and 
conviction  against  the  said  comforters,  abettors,  partakers,  confederates, 
and  adherents,  shall  be  as  strong  and  effectual  in  the  law  against  them, 
and  every  of  them,  as  though  they  and  every  of  them  had  been  specially, 
singularly,  and  particularly  named  by  their  proper  names  and  surnames 
in  the  said  act.” 

These  bills  may  inflict  punishment  absolutely,  or  niay  inflict  it  con- 
ditionally. 

The  bill  against  the  Earl  of  Clarendon,  passed  in  the  reign  of  Charles 
the  Second,  enacted  that  the  earl  should  suffer  perpetual  exile,  and  be  for- 
ever banished  from  the  realm  ; and  that  if  he  returned,  or  was  found  in 
England,  or  in  any  other  of  the  King’s  domains  after  the  first  of  February, 
1667,  he  should  suffer  the  pains  and  penalties  of  treason  ; with  the  pro- 
viso, however,  that  if  he  surrendered  himself  before  the  said  first  day  of 
February  for  trial,  the  penalties  and  disabilities  declared  should  be  void 
and  of  no  effect.J 

“ A British  Act  of  Parliament,”  to  cite  the  language  of  the  Supreme 
Court  of  Kentucky,  “ might  declare,  that  if  certain  individuals,  or  a class 
of  individuals,  failed  to  do  a given  act  by  a named  day,  they  should  be 
deemed  to  be,  and  treated  as  convicted  felons  or  traitors.  Such  an  act 


* Commentaries  on  the  Constitution,  $ 1,  344. 

|28  Henry  VIII.,  Chap.  18,  3 Stats,  of  the  Realm,  694. 
% Printed  in  6 Howell’s  State  Trials,  p.  391. 


451 


comes  precisely  within  the  definition  ol'  a bill  of  attainder,  and  the  Eng- 
lish courts  would  enforce  it  without  indictment  or  trial  by  jury.”  * 

If  the  clauses  of  the  second  article  of  the  constitution  of  Missouri,  to 
which  we  have  referred,  had  iu  terms  declared  that  Mr.  Cummings  was 
guilty,  or  should  be  held  guilty,  of  having  been  inarmed  hostility  to  the 
United  States,  or  of  having  entered  that, State  to  avoid  being  enrolled  or 
drafted  into  the  military  service  of  the  United  States,  and,  therefore,  should 
be  deprived  of  the  right  to  preach  as  a priest  of  the  Catholic  Church,  or  to 
teach  in  any  institution  of  learning,  there  could  be  no  question  that  the 
clauses  would  constitute  a bill  of  attainder  within  the  meaning  of  the 
Federal  Constitution.  If  these  clauses,  instead  of  mentioning  his  name, 
had  declared  that  all  priests  and  clergymen  within  the  State  of  Missouri 
were  guilty  of  these  acts,  or  should  be  held  guilty  of  them,  and  hence 
be  subjected  to  the  like  deprivation,  the  clauses  would  be  equally  open  to 
objection.  And  further,  if  these  clauses  had  declared  that  all  such  priests 
and  clergymen  should  be  so  held  guilty,  and  be  thus  deprived,  provided 
they  did  not,  by  a day  designated,  do  certain  specified  acts,  they  would  be 
no  less  within  the  inhibition  of  the  Federal  Constitution. 

In  all  these  cases  there  would  be  the  legislative  enactment  creating  the 
deprivation  without  any  of  the  ordinary  forms  and  guards  provided  for 
the  security  of  the  citizen  in  the  administration  of  justice  by  the  estab- 
lished tribunals. 

The  results  which  would  follow  from  clauses  of  the  character  men- 
tioned do  follow  from  the  clauses  actually  adopted.  The  difference  be- 
tween the  last  case  supposed  and  the  case  actually  presented  is  one  of 
form  only,  and  not  of  substance.  The  existing  clauses  presume  the 
guilt  of  the  priests  and  clergymen,  and  adjudge  the  deprivation  of  their 
right  to  preach  or  teach  unless  the  presumption  be  first  removed  by  their 
expurgatory  oath  ; in  other  words,  they  assume  the  guilt  and  adjudge  the 
punishment  conditionally.  The  clauses  supposed  differ  only  in  that  they 
declare  the  guilt  instead  of  assuming  it.  The  deprivation  is  effected  with 
equal  certainty  in  the  one  case  as  it  would  be  in  the  other,  but  not  with 
equal  directness.  The  purpose  of  the  law-maker,  in  the  case  supposed 
would  be  openly  avowed ; iu  the  case  existing  it  is  only  disguised.  The 
legal  result  must  be  the  same,  for  what  cannot  be  done  directly  cannot 
be  done  indirectly.  The  Constitution  deals  with  substance,  not  shadows. 
Its  inhibition  was  leveled  at  the  thing,  not  the  name.  It  intended  that 
the  rights  of  the  citizen  should  be  secure  against  deprivation  for  past 
conduct  by  legislative  enactment,  under  any  form,  however  disguised.  If 
the  inhibition  can  be  evaded  by  the  form  of  the  enactment,  its  insertion 
in  the  fundamental  law  was  a vain  and  futile  proceeding. 

We  proceed  to  consider  the  second  clause  of  what  Mr.  Chief  Justice 
Marshall  terms  a bill  of  rights  for  the  people  of  each  State ; the  clause 
which  inhibits  the  passage  of  an  ex  post  facto  law. 


" Gaines  vs.  Buford,  1 Dana,  510. 


30 


By  an  r.r  post  facto  law  is  meant  one  which  imposes  a punishment  for 
an  act  which  was  not  punishable  at  the  time  it  was  committed  ; or  im- 
poses additional  punishment  to  that  then  prescribed;  or  changes  the 
rules  of  evidence  by  which  less  or  different  testimony  is  sufficient  to  con- 
vict than  was  then  required. 

In  Fletcher  vs.  Peck,  Mr.  Chief  Justice  Marshall  defined  an  ex  post 
facto  law-  to  be  one  “ which  renders  an  act  punishable  in  a manner  in 
which  it  was  not  punishable  when  it  was  committed.”  “Such  a law,” 
said  that  eminent  judge,  “ may  inflict  penalties  on  the  person,  or  may  in- 
flict pecuniary  penalties  which  swell  the  public  treasury.  The  Legislature 
is  then  prohibited  from  passing  a law  by  which  a man’s  estate,  or  any 
part  of  it,  shall  be  seized  for  a crime,  which  was  not  declared  by  some 
previous  law-  to  render  him  liable  to  1 hat  punishment.  Why,  then,  should 
violence  be  done  to  the  natural  meaning  of  w-ords  for  the  purpose  of  leav- 
ing to  the  Legislature  the  pow  er  of  seizing  for  public  use  tbe  estate  of  an 
individual,  in  the  form  of  a law  annulling  the  title  by  which  he  holds 
the  estate  ? The  Court  can  perceive  no  sufficient  grounds  for  making  this 
distinction.  This  rescinding  act  would  have  the  effect  of  an  ex  post  facto 
law.  It  forfeits  the  estate  of  Fletcher  for  a crime  not  committed  by  him- 
self, but  by  those  from  whom  he  purchased.  This  cannot  be  effected  in 
the  form  of  an  ex  post  facto  law,  or  bill  of  attainder;  why,  then,  is  it  al- 
lowable in  the  form  of  a law  annulling  the  original  grant?  ” 

The  act  to  which  reference  is  here  made  was  one  passed  by  the  State 
of  Georgia,  rescinding  a previous  act,  under  which  lands  had  been  granted. 
The  rescinding  act,  annulling  the  title  of  the  grantees,  did  not,  in  terms, 
define  any  crimes,  or  inflict  any  punishment,  or  direct  any  judicial  pro- 
ceedings ; yet,  inasmuch  as  the  Legislature  was  forbidden  from  passing  any 
law  by  which  a man’s  estate  could  be  seized  for  a crime,  which  was  not 
declared  such  by  some  previous  law  rendering  him  liable  to  that  punish- 
ment, the  Chief  Justice  was  of  opinion  that  the  rescinding  act  had  the  ef- 
fect of  an  ex  post  facto  law,  and  was  within  the  constitutional  prohibition. 

The  clauses  in  the  Missouri  constitution,  which  are  tbe  subject  of  con- 
sideration, do  not,  in  terms,  define  any  crimes,  or  declare  that  any  pun- 
ishment shall  be  inflicted,  but  they  produce  the  same  result  upon  the 
parties,  against  whom  they  are  directed,  as  though  the  crimes  were  de- 
fined and  the  punishment  was  declared.  They  assume  that  there  are 
persons  in  Missouri  who  are  guilty  of  some  of  the  acts  designated.  They 
would  have  no  meaning  in  the  constitution  were  not  such  the  fact.  They 
are  aimed  at  past  acts,  and  not  future  acts.  They  were  intended  es- 
pecially to  operate  upon  parties  who,  in  some  form  or  manner,  by  action 
or  words,  directly  or  indirectly,  had  aided  or  countenanced  the  rebellion, 
or  sympathized  with  parties  engaged  in  the  rebellion,  or  had  endeavored 
to  escape  the  proper  responsibilities  and  duties  of  a citizen  in  time  of 
war  ; and  they  were  intended  to  operate  by  depriving  such  persons  of  the 
right  to  hold  certain  offices  and  trusts,  and  to  pursue  their  ordinary  and 
regular  avocations,  This  deprivation  is  punishment ; nor  is  it  any  less  so 


453 

because  a way  is  opened  for  escape  from  it  by  the  expurgatory  oath.  The 
framers  of  the  constitution  of  Missouri  knew  at  the  time  that  whole  classes 
of  individuals  would  he  unable  to  take  the  oath  prescribed.  To  them  there 
is  no  escape  provided ; to  them  the  deprivation  was  intended  to  be,  and 
is,  absolute  and  perpetual.  To  make  the  enjoyment  of  a right  dependent 
upon  an  impossible  condition  is  equivalent  to  an  absolute  denial  of  the 
right  under  any  condition,  and  such  denial,  enforced  for  a past  act,  is 
nothing  less  than  punishment  imposed  for  that  act.  It  is  a misapplica- 
tion of  terms  to  call  it  anything  else. 

Now,  some  of  the  acts  to  which  the  expurgatory  oath  is  directed, 
were  not  offences  at  the  time  they  were  committed.  It  was  no  offence 
against  any  law  to  enter  or  leave  the  State  of  Missouri  for  the  purpose 
of  avoiding  enrollment  or  draft  in  the  military  service  of  the  United 
States,  however  much  the  evasion  of  such  service  might  be  the  subject 
of  moral  censure.  Clauses  which  prescribe  a penalty  for  an  act  of  this 
nature,  are  within  the  terms  of  the  definition  of  an  ex  post  facto  law ; 
“ they  impose  a punishment  for  an  act  not  punishable  at  the  time  it  was 
committed.” 

Some  of  the  acts  at  which  the  oath  is  directed  constituted  high  offences 
at  the  time  they  were  committed,  to  which,  upon  conviction,  fine  and 
imprisonment,  or  other  heavy  penalties  were  attached.  The  clauses  which 
provide  a further  penalty  for  these  acts  are  also  within  the  definition  of 
an  ex  post  facto  law;  “they  impose  additional  punishment  to  that  pre- 
scribed when  the  act  was  committed.” 

And  this  is  not  all.  The  clauses  in  question  subvert  the  presumptions 
of  innocence,  and  alter  the  rules  of  evidence,  which  heretofore,  under  the 
universally  recognized  principles  of  the  common  law,  have  been  supposed 
to  be  fundamental  and  unchangeable.  They  assume  that  the  parties  are 
guilty;  they  call  upon  the  parties  to  establish  their  innocence;  and 
they  declare  that  such  innocence  can  be  shown  only  in  one  way;  by  an 
inquisition,  in  the  form  of  an  expurgatory  oath,  into  the  consciences  of 
the  parties. 

The  objectionable  character  of  these  clauses  will  be  more  apparent  if 
we  put  them  into  the  ordinary  form  of  a legislative  act.  Thus,  if  instead 
of  the  general  provisions  in  the  constitution  the  convention  had  provided 
as  follows : Be  it  enacted,  that  all  persons  who  have  been  in  armed  hostility 
to  the  United  States  shall,  upon  conviction  thereof,  not  only  be  punished 
as  the  laws  provided  at  the  time  the  offences  charged  were  committed, 
but  shall  also  be  thereafter  rendered  incapable  of  holding  any  of  the  of- 
fices, trusts,  and  positions,  and  of  exercising  any  of  the  pursuits  men- 
tioned in  the  second  article  of  the  constitution  of  Missouri ; no  one  would 
have  any  doubt  of  the  nature  of  the  enactment.  It  would  be  an  ex  post 
facto  law,  and  void  ; for  it  would  add  a new  punishment  for  an  old  of- 
fence. So,  too,  if  the  convention  had  passed  an  enactment  of  a similar 
kind  with  reference  to  those  acts  which  did  not  constitute  offences.  Thus, 
had  it  provided  as  follows:  Be  it  enacted, that  all  persons  who  have  here- 


tofore,  at  any  lime,  entered  or  left  the  State  of  Missouri,  with  intent  to 
avoid  enrollment  or  draft  in  the  military  service  of  the  United  States, 
shall,  upon  conviction  thereof,  be  forever  rendered  incapable  of  holding 
any  office  of  honor,  trust,  or  profit  in  the  State,  or  of  teaching  in  any 
seminary  of  learning,  or  of  preaching  as  a minister  of  the  Gospel  of  any 
denomination,  or  of  exercising  any  of  the  professions  or  pursuits  men- 
tioned in  the  second  article  of  the  constitution ; there  would  be  no  ques- 
tion of  the  character  of  the  enactment.  It  would  be  an  ex  post  facto  law, 
because  it  would  impose  a punishment  for  an  act  not  punishable  at  the 
time  it  was  committed. 

The  provisions  of  the  constitution  of  Missouri  accomplish  precisely 
what  enactments  like  those  supposed  would  have  accomplished.  They 
impose  the  same  penalty,  without  the  formality  of  a judicial  trial  and 
conviction  ; for  the  parties  embraced  by  the  supposed  enactments  ■would 
be  incapable  of  taking  the  oath  prescribed  ; to  them  its  requirement 
■would  be  an  impossible  condition.  Now,  as  the  State,  had  she  attempted 
the  course  supposed,  would  have  failed,  it  must  follow  that  any  other 
mode  producing  the  same  result  must  equally  fail.  The  provisions  of  the 
Federal  Constitution,  intended  to  secure  the  liberty  of  the  citizen,  cannot 
be  evaded  by  the  form  in  which  the  power  of  the  State  is  exerted.  If 
this  were  not  so,  if  that  which  cannot  be  accomplished  by  means  looking 
directly  to  the  end,  can  be  accomplished  by  indirect  means,  the  inhibition 
may  be  evaded  at  pleasure.  No  kind  of  oppression  can  be  named,  against 
which  the  framers  of  the  Constitution  intended  to  guard,  which  may  not 
be  effected.  Take  the  ease  supposed  by  counsel ; that  of  a man  tried  for 
treason  and  acquitted,  or  if  convicted,  pardoned  ; the  Legislature  may 
nevertheless  enact  that,  if  the  person  thus  acquitted  or  pardoned  does 
not  take  an  oath,  that  he  never  has  committed  the  acts  charged  against 
him,  he  shall  not  be  permitted  to  hold  any  office  of  honor,  or  trust,  or 
profit,  or  pursue  any  avocation  in  the  State.  Take  the  ease  before  us; 
the  constitution  of  Missouri,  as  we  have  seen,  excludes,  on  failure  to  take 
the  oath  prescribed  by  it,  a large  class  of  persons  within  her  borders  from 
numerous  positions  and  pursuits  ; it  would  have  been  equally  within  the 
power  of  the  State  to  have  extended  the  exclusion  so  as  to  deprive  the 
parties,  who  are  unable  to  take  the  oath,  from  any  avocation  whatever  in 
the  State.  Take  still  another  case  ; suppose  that,  in  the  progress  of  events, 
persons  now  in  the  minority  in  the  State,  should  obtain  the  ascendency, 
and  secure  the  control  of  the  government;  nothing  could  prevent,  if  the 
constitutional  prohibition  can  be  evaded,  the  enactment  of  a provision 
requiring  every  person,  as  a condition  of  holding  any  position  of  honor 
or  trust,  or  of  pursuing  any  avocation  in  the  State,  to  take  an  oath  that 
lie  had  never  advocated  or  advised  or  supported  the  imposition  of  the 
present  expurgatory  oath.  Under  this  form  of  legislation  the  most  fla- 
grant invasion  of  private  rights,  in  periods  of  excitement,  may  be  enacted, 
and  individuals,  eyen  whole  classes,  may  be  deprived  of  political  and  civil 
rights, 


455 


A question  arose  in  New  York,  soon  after  the  Treaty  of  Peace  in  1783, 
Upon  a statute  of  that  State,  Which  involved  a discussion  of  the  nature 
and  character  of  these  expurgatory  oaths,  when  used  as  a means  of  in- 
flicting punishment  for  past  conduct.  The  subject  was  regarded  as  so 
important,  and  the  requirement  of  the  oath  such  a violation  of  the  fun- 
damental principles  of  civil  liberty,  and  the  rights  of  the  citizen,  that  it 
engaged  the  attention  of  eminent  lawyers  and  distinguished  statesmen 
of  the  time,  and  among  others  of  Alexander  Hamilton.  We  will  cite 
some  passages  of  a paper  left  by  him  on  the  subject,  in  which,  with  his 
characteristic  fullness  and  ability,  he  examines  the  oath,  and  demonstrates 
that  it  is  not  only  a mode  of  inflicting  punishment,  but  a mode  in  viola- 
tion of  all  the  constitutional  guaranties,  secured  by  the  Revolution,  of  the 
rights  and  liberties  of  the  people. 

“If  we  examine  it,”  (the  measure  requiring  the  oath,)  said  this  great 
lawyer,  “with  an  unprejudiced  eye,  we  must  acknowledge,  not  only  that 
it  was  an  evasion  of  the  treaty,  but  a subversion  of  one  great  principle  of 
social  security,  to  wit : that  every  man  shall  be  presumed  innocent  until 
he  is  proved  guilty.  This  was  to  invert  the  order  of  things;  and,  instead 
of  obliging  the  State  to  prove  the  guilt,  in  order  to  inflict  the  penalty,  it 
was  to  oblige  the  citizen  to  establish  his  own  innocence  to  avoid  the 
penalty.  It  was  to  excite  scruples  in  the  honest  and  conscientious,  and 

to  hold  out  a bribe  to  perjury It  was  a mode  of  inquiry  who 

had  committed  any  of  those  crimes  to  which  the  penalty  of  disqualifica- 
tion was  annexed,  with  this  aggravation,  that  it  deprived  the  citizen  of 
the  benefit  of  that  advantage,  which  he  would  have  enjoyed  by  leaving, 
as  in  all  other  cases,  the  burthen  of  the  proof  upon  the  prosecutor. 

“ To  place  this  matter  in  a still  clearer  light,  let  it  be  supposed  that 
instead  of  the  mode  of  indictment  and  trial  by  jury  the  Legislature  was 
to  declare  that  every  citizen,  who  did  not  swear  he  had  never  adhered  to 
the  King  of  Great  Britain,  should  incur  all  the  penalties  which  our 
treason  laws  prescribe.  Would  this  not  be  a palpable  evasion  of  the 
treaty,  and  a direct  infringement  of  the  Constitution  ? The  principle  is 
the  same  in  both  cases,  with  only  this  difference  in  the  consequences  ; — 
that  iu  the  instance  already  acted  upon  the  citizen  forfeits  a part  of  his 
rights;  in  the  one  supposed  he  would  forfeit  the  whole.  The  degree  of 
punishment  is  all  that  distinguishes  the  cases.  In  either,  justly  consid- 
ered, it  is  substituting  a new  and  arbitrary  mode  of  prosecution  to  that 
ancient  and  highly-esteemed  one  recognized  by  the  laws  and  the  consti- 
tution of  the  State.  I mean  the  trial  by  jury. 

“ Let  us  not  forget  that  the  Constitution  declares  that  trial  by  jury,  in 
all  cases  in  which  it  has  been  formerly  used,  should  remain  inviolate  for- 
ever, and  that  the  Legislature  should  at  no  time  erect  any  new  jurisdic- 
tion which  should  not  proceed  according  to  the  course  of  the  common 
law.  Nothing  can  be  more  repugnant  to  the  true  genius  of  the  com- 
mon law  than  such  an  inquisition  as  has  been  mentioned  into  the  con- 
sciences of  men If  any  oath  with  retrospect  to  past 


456 

conduct  were  to  be  made  the  condition  on  which  individuals,  who  have 
resided  within  the  British  lines,  should  hold  their  estates,  we  should  im- 
mediately see  that  this  proceeding  would  be  tyrannical,  and  a violation 
of  the  treaty;  and  yet,  when  the  same  mode  is  employed  to  divest  that 
right,  which  ought  to  be  deemed  still  more  sacred,  many  of  us  are  so 
infatuated  as  to  overlook  the  mischief. 

“To  say  that  the  persons  who  will  be  affected  by  it  have  previously 
forfeited  that  right,  and  that  therefore  nothing  is  taken  away  from  them, 
is  a begging  of  the  question.  How  do  we  know  who  are  the  persons  in 
this  situation  ? If  it  be  answered,  this  is  the  mode  taken  to  ascertain 
it,  the  objection  returns,  ’tis  an  improper  mode,  because  it  puts  the  most 
essential  ifiterests  of  the  citizen  upon  a worse  footing  than  we  should  be 
willing  to  tolerate  where  inferior  interests  were  concerned,  and  because, 
to  elude  the  treaty,  it  substitutes  for  the  established  and  legal  mode  of 
investigating  crimes  and  inflicting  forfeitures,  one  that  .is  unknown  to 
the  Constitution,  and  repugnant  to  the  genius  of  our  law.” 

Similar  views  have  frequently  been  expressed  by  the  judiciary  in  cases 
involving  analogous  questions.  They  are  presented  with  great  force  in 
the  matter  of  Dorsey ,*  but  we  do  not  deem  it  necessary  to  pursue  the 
subject  further. 

The  judgment  of  the  Supreme  Court  of  Missouri  must  be  reversed,  and 
the  cause  remanded,  with  directions  to  enter  a judgment  reversing  the 
judgment  of  the  Circuit  Court,  and  directing  that  Court  to  discharge  the 
defendant  from  imprisonment,  and  suffer  him  to  depart  without  day. 
And  it  is  so  ordered. 


* 7 Porter’s  Reports,  294. 


SUPREME  COURT  OF  THE  UNITED  STATES. 


Kx-parte  Garland. 


Mr.  Justice  Field  delivered  the  opinion  of  the  Court.* 

On  the  2d  of  July,  1862,  Congress  passed  an  act  prescribing  an  oath  to 
be  taken  by  every  person  elected  or  appointed  to  any  office  of  honor  or 
profit  under  the  Government  of  the  United  States,  either  in  the  civil, 
military,  or  naval  departments  of  the  public  service,  except  the  President, 
before  entering  upon  the  duties  of  his  office,  and  before  being  entitled  to  its 
salary  or  other  emoluments.  On  the  24th  of  January,  1865,  Congress,  by 
a supplementary  act,  extended  its  provisions  so  as  to  embrace  attorneys 
and  counsellors  of  the  Courts  of  the  United  States.  This  latter  act  pro- 
vides that  after  its  passage  no  person  shall  be  admitted  as  an  attorney 
and  counsellor  to  the  bar  of  the  Supreme  Court,  and,  after  the  4th  of 
March,  1865.  to  the  bar  of  any  Circuit  or  District  Court  of  the  United 
States,  or  of  the  Court  of  Claims,  or  be  allowed  to  appear  and  be  heard  by 
virtue  of  any  previous  admission,  or  any  special  power  of  attorney,  unless 
he  shall  have  first  taken  and  subscribed  the  oath  prescribed  by  the  act  of 
July  2d,  1862.  It  also  provides  that  the  oath  shall  be  preserved  among 
the  files  of  the  Court,  and  if  any  person  take  it  falsely  he  shall  be  guilty 
of  perjury,  and,  upon  conviction,  shall  be  subject  to  the  pains  and  penal- 
ties of  that  offence. 

At  the  December  Term,  1860,  the  petitioner  was  admitted  as  an  attor- 
ney and  counsellor  of  this  Court,  and  took  and  subscribed  the  oath  then 
required.  By  the  second  rule,  as  it  then  existed,  it  was  only  requisite  to 
the  admission  of  attorneys  and  counsellors  of  this  Court  that  they  should 
have  been  such  officers  for  three  previous  years  in  the  highest  Courts  of 
the  States  to  which  they  respectively  belonged,  and  that  their  private 
and  professional  character  should  appear  to  be  fair.  * 

In  March,  1865,  this  rule  was  changed  by  the  addition  of  a clause  re- 
quiring the  administration  of  the  oath  in  conformity  with  the  act  of 
Congress. 

In  May,  1861,  the  State  of  Arkansas,  of  which  the  petitioner  was  a cit- 
izen, passed  an  ordinance  of  secession  which  purported  to  withdraw  the 


* Delivered  at  the  December  Term,  1866,  and  reported  in  4th  Wallace, 
Supreme  Court  Reports,  374. 


458 


State  from  the  Union,  and  afterwards,  in  the  same  year,  by  another  ordi- 
nance, attached  herself  to  the  so-called  Confederate  States,  and  by  act  of 
the  Congress  of  that  Confederacy  was  received  as  one  of  its  members. 

The  petitioner  followed  the  State  and  was  one  of  her  representatives, 
first  in  the  lower  house  and  afterwards  in  the  Senate,  of  the  Congress  of 
that  Confederacy,  and  was  a member  of  the  Senate  at  the  time  of  the 
surrender  of  the  Confederate  forces  to  the  armies  of  the  United  States. 

In  July,  1865,  he  received  from  the  President  of  the  United  States  a 
full  pardon  for  all  offences  committed  by  his  participation,  direct  or  im- 
plied, in  the  Rebellion.  He  now  produces  his  pardon  and  asks  permission 
to  continue  to  practice  as  an  attorney  and  counsellor  of  the  Court  with- 
out taking  the  oath  required  by  the  act  of  January  24th,  1865,  and  the 
rule  of  the  Court,  which  he  is  unable  to  take  by  reason  of  the  offices  he 
held  under  the  Confederate  Government.  He  rests  his  application  princi- 
pally upon  two  grounds  : 

1st.  That  the  act  of  January  24th,  1865,  so  far  as  it  affects  his  status  in 
the  Court,  is  unconstitutional  and  void  ; and, 

2d.  That,  if  the  act  he  constitutional,  he  is  released  from  compliance 
with  its  provisions  by  the  pardon  of  the  President. 

The  oath  prescribed  by  the  act  is  as  follows  : 

1st.  That  the  deponent  has  never  voluntarily  borne  arms  against  the 
United  States  since  he  has  been  a citizen  thereof; 

2d.  That  he  has  not  voluntarily  given  aid,  countenance,  counsel,  or  en- 
couragement to  persons  engaged  in  armed  hostility  thereto; 

3d.  That  he  has  never  sought,  accepted,  or  attempted  to  exercise  the 
functions  of  any  office  whatsoever,  under  any  authority,  or  pretended  au- 
thority, in  hostility  to  the  United  States  ; 

4th.  That  he  has  not  yielded  a voluntary  support  to  any  pretended 
government,  authority,  power,  or  constitution  within  the  United  States, 
hostile  or  inimical  thereto;  and, 

5tli.  That  he  will  support  and  defend  the  Constitution  of  the  United 
States  against  all  enemies,  foreign  and  domestic,  and  will  bear  true  faith 
and  allegiance  to  the  same. 

This  last  clause  is  promissory  only,  and  requires  no  consideration.  The 
questions  presented  for  our  determination  arise  from  the  other  clauses. 
These  all  relate  to  past  acts.  Some  of  these  acts  constituted,  when  they 
were  committed,  offences  against  the  criminal  laws  of  the  country  ; others 
may,  or  may  not,  have  been  offences,  according  to  the  circumstances  un- 
der which  they  were  committed  and  the  motives  of  the  parties.  The 
first  clause  covers  one  form  of  the  crime  of  treason,  and  the  deponent 
must  declare  that  he  has  not  been  guilty  of  this  crime,  not  only  during 
the  war  of  the  Rebellion,  but  during  any  period  of  his  life  since  he  has 
been  a citizen.  The  second  clause  goes  beyond  the  limits  of  treason  and 
embraces  not  only  the  giving  of  aid  and  encouragement  of  a treasonable 
nature  to  a public  enemy,  but  also  the  giving  of  assistance  of  any  kind 
to  persons  engaged  in  armed  hostility  to  the  United  States.  The  third 


459 


clause  applies  to  the  seeking,  acceptance,  or  exercise,  not  onlyr  of  offices 
created  for  the  purpose  of  more  effectually  carrying  on  hostilities,  but 
also  of  any  of  those  offices  which  are  required  in  every  community, 
whether  in  peace  or  war,  for  the  administration  of  justice  and  the  preser- 
vation of  order.  The  fourth  clause  not  only  includes  those  who  gave  a 
cordial  and  active  support  to  the  hostile  government,  bnt  also  those  who 
yielded  a reluctant  obedience  to  the  existing  order,  established  without 
their  co-operation. 

The  statute  is  directed  against  parties  who  have  offended  in  any  of 
the  particulars  embraced  by  these  clauses.  And  its  object  is  to  exclude 
them  from  the  profession  of  the  law,  or  at  least  from  its  practice  in  the 
Courts  of  the  United  States.  As  the  oath  prescribed  cannot  be  taken  by 
these  parties,  the  act,  as  against  them,  operates  as  a legislative  decree  of 
perpetual  exclusion.  And  exclusion  from  any  of  the  professions  or  any 
of  the  ordinary  avocations  of  life  for  past  conduct  can  be  regarded  in  no 
other  light  than  as  punishment  for  such  conduct.  The  exaction  of  the 
oath  is  the  mode  provided  for  ascertaining  the  parties  upon  whom  the 
act  is  intended  to  operate,  and  instead  of  lessening,  increases  its  objec- 
tionable character.  All  enactments  of  this  kind  partake  of  the  nature 
of  bills  of  pains  and  penalties,  and  are  subject  to  the  constitutional  in- 
hibition against  the  passage  of  bills  of  attainder,  under  which  general 
designation  they  are  included. 

In  the  exclusion  which  the  statute  adjudges,  it  imposes  a punishment 
for  some  of  the  acts  specified,  which  were  not  punishable  at  the  time 
they  were  committed ; and  for  other  of  the  acts  it  adds  a new  punish- 
ment to  that  before  prescribed,  and  it  is  thus  brought  within  the  further 
inhibition  of  tbe  Constitution  against  the  passage  of  an  ex  post  facto  law. 
In  the  case  of  Cummings  against  The  State  of  Missouri,  just  decided,  we 
have  had  occasion  to  consider  at  length  the  meaning  of  a bill  of  attain- 
der and  of  an  ex  pout  facto  law  in  the  clause  of  the  Constitution  forbid- 
ding their  passage  by  the  States,  and  it  is  unnecessary'  to  repeat  here 
what  we  there  said.  A like  prohibition  is  contained  in  the  Constitution 
against  enactments  of  this  kind  by  Congress;  and  the  argument  pre- 
sented in  that  case  against  certain  clauses  of  the  constitution  of  Missouri 
is  equally  applicable  to  the  act  of  Congress  under  consideration  in  this 
case* 


*“  Suppose  the  act  to  have  been  mandatory'  to  the  Courts,  to  call  upon 
all  the  members  of  their  bar  to  answer  on  oath  whether  they  had  borne 
arms  against  the  United  States  since  they  became  citizens;  whether  they 
had  voluntarily  given  aid,  counsel,  countenance,  or  encouragement  to  per- 
sons engaged  in  hostilities  to  the  United  States;  whether  they  had  sought 
or  performed  the  functions  of  any  office,  under  any'  authority',  or  pre- 
tended authority,  in  hostility  to  the  United  States  ; or  had  yielded  a vol- 
untary support  to  any  pretended  authority'  or  government  within  the 
United  States,  or  inimical  thereto,  and  upon  the  failure  of  any  one  to 
answer  such  interrogations,  and  all  elucidating  interrogations,  or  to  an- 
swer satisfactorily,  it  should  be  their  duty'  to  erase  the  name  of  such  re- 


The  profession  of  an  attorney  and  counsellor  is  not  like  an  office  cre- 
ated by  an  act  of  Congress,  which  depends  for  its  continuance,  its  powers, 
and  its  emoluments  upon  the  will  of  its  creator,  and  the  possession  of 
which  may  be  burdened  with  any  conditions  not  prohibited  by  the  Con- 
stitution. Attorneys  and  counsellors  are  not  officers  of  the  United  States  ; 
they  are  not  elected  nor  appointed  in  the  manner  prescribed  by  the  Con- 
stitution for  the  election  and  appointment  of  such  officers.  They  are  of- 
ficers of  the  Court,  admitted  as  such  by  its  order,  upon  evidence  of  their 
possessing  sufficient  legal  learning  and  fair  private  character.  It  has 
been  the  general  practice  in  this  country  to  obtain  this  evidence  by  an 
examination  of  the  parties.  In  this  Court  the  fact  of  the  admission  of 
such  officers  in  the  highest  Court  of  the  States  to  which  they  respectively 
belong,  for  three  years  preceding  their  application,  is  regarded  as  suffi- 
cient evidence  of  the  possession  of  the  requisite  legal  learning,  and  the 
statement  of  counsel,  moving  their  admission,  sufficient  evidence  that 
their  private  and  professional  character  is  fair.  The  order  of  admission 


cnsant  attorney  from  the  rolls.  . . . And  suppose  in  such  ease  the 

Attorney-General  were  asked  whether,  since  he  had  been  a citizen  of  the 
United  States,  he  had  borne  arms  against  the  United  States  ? The  At- 
torney-General would  be  informed  that  he  might  answer  or  not;  but  if 
he  failed  to  answer  he  would  lose  his  faculty  of  appearing  in  Court.  If 
he  answered  in  the  affirmative  he  would  forfeit  his  place,  and  if  he  an- 
swered falsely  he  would  be  liable  to  indictment He  must 

have  answered:  ‘May  it  please  your  Honors,  the  Constitution  of  the 
United  States  declares  that  “ no  person  shall  be  held  to  answer  fob, 
a CAPITAL  ok  other  INFAMOUS  OFFENCE,  unless  on  the  presentment  of 
a grand  jury  ; that  no  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  confession  in  open 
court;  and  that  no  person  shall  be  compelled  in  any  criminal  case  to  be 
a witness  against  himself.”  The  act  of  bearing  arms  against  the  United 
States  is  an  overt  act  of  treason  by  a citizen  thereof.  The  demand  upon 
a whole  profession — a profession  of  which  I am  a member— to  perform  a 
ceremony  that  violates  the  Constitution  is  an  indignity.  I fulfill  my 
oath  of  office  to  support  this  Constitution  by  declining  to  answer  the 
question.  I submit  this  answer  to  the  conscience  of  the  Court.’  I feel 
satisfied  that  no  Supreme  Court  Would  have  insisted  on  the  answer.  . . 

“ Let  us  suppose  that  the  act  had  enumerated  by  name  all  the  members 
of  the  bar  of  the  different  Courts  of  the  United  States,  and  had  enacted 
that  each  and  all  of  those  must  be  prohibited  from  entering  the  Courts 
until  they  had  made  oath  that  they  had  not,  in  the  course  of  their  lives, 
violated  any  one  of  the  TEN  commandments.  Some  of  these  command- 
ments do  not  enter  into  the  statute  laws  of  the  United  States  ; and  others 
are  not,  perhaps,  the  subject  of  legislative  action  in  any  of  the  United 
States.  Every  one  of  the  existing  members  of  the  legal  profession  would 
probably  find  himself  in  a condition  not  to  answer  to  his  own  satisfaction 
such  interrogatories  to  himself  as  the  law  would  elicit. 

“ Jeremy  Taylor,  in  his  exposition  of  those  commandments — not  a 
strained  construction  of  them — shows  that  they  include  nearly  all  of  the 
social,  civil,  and  personal  obligations  of  men.  I am  wholly  unable  to 
find  any  arguments  in  favor  of  my  professional  brethren  to  avoid  the  issue 
of  such  a test,  that  are  not  equally  applicable  to  the  act  of  January,  1865.” 
— Campbell. 


is  the  judgment  of  the  Court  that  the  parties  possess  the  requisite  quali- 
fications as  attorneys  and  counsellors,  and  are  entitled  to  appear  as  such 
and  conduct  causes  therein.  From  its  entry  the  parties  become  officers 
of  the  Court,  and  are  responsible  to  it  for  professional  misconduct.  They 
hold  their  office  during  good  behavior,  and  can  only  be  deprived  of  it 
for  misconduct  ascertained  and  declared  by  the  judgment  of  the  Court, 
after  opportunity  to  be  heard  has  been  afforded.*  Their  admission  or 
their  exclusion  is  not  the  exercise  of  a mere  ministerial  power.  It  is  the 
exercise  of  judicial  power,  and  has  been  so  held  in  numerous  cases.  It 
was  so  held  by  the  Court  of  Appeals  of  New  York  in  the  matter  of  the 
application  of  Cooper  for  admission.!  “ Attorneys  and  counsellors,”  said 
that  Court,  “ are  not  only  officers  of  the  Court,  but  officers  whose  duties 
relate  almost  exclusively  to  proceedings  of  a judicial  nature.  And  hence 
their  appointment  may,  with  propriety,  be  intrusted  to  the  Courts,  and 
the  latter,  in  performing  this  duty,  may  very  justly  be  considered  as  en- 
gaged in  the  exercise  of  their  appropriate  judicial  functions.” 

In  Ex-parte  Secombe,%  a mandamus  to  the  Supreme  Court  of  the  Terri- 
tory of  Minnesota  to  vacate  an  order  removing  an  attorney  and  counsellor 
was  denied  by  this  Court,  on  the  ground  that  the  removal  was  a judicial 
act,  “We  are  not  aware  of  any  case,”  said  the  Court,  “ where  a man- 
damus was  issued  to  an  inferior  tribunal,  commanding  it  to  reverse  or 
annul  its  decision,  where  the  decision  was  in  its  nature  a judicial  act,  and 
within  the  scope  of  its  jurisdiction  and  discretion,”  And  in  the  same 


* “ It  is  a fundamental  principle  in  jurisprudence  that  no  man  shall  be 
deprived  of  his  right  without  citation  and  an  opportunity  of  being  heard. 
In  the  jurisprudence  of  the  Homans — the  magistrates  of  mankind — it 
was  a rule  that  no  judgment  should  be  given  before  citation.  A Roman 
governor,  in  a remote  and  despised  province — a governor  weak,  faithless, 
and  corrupt — in  the  case  of  the  great  Apostle,  has  made  this  principle  a 
home  word  in  the  mouths  of  all  Christians.  Festus  informed  Agrippa 
that  he  had  answered  to  the  Jews:  'It  is  not  the  manner  of  the  Romans 
to  deliver  any  man  to  die,  before  that  he  which  is  accused  have  the  ac- 
cusers face  to  face,  and  have  license  to  answer  for  himself  concerning  the 
crime  laid  against  him.’ — (Acts,  chap.  25,  v.  16.)  This  sentence  is  a part 
of  the  Constitution  of  the  United  States,  with  more  generality  than  it 
was  necessary  for  Festus  to  state.” — Campbell. 

In  Ex-parte  Robinson,  decided  at  the  October  Term,  1873,  ( 19  Wall,, 
512— ’13,)  the  Court  held  that  before  a judgment  disbarring  an  attorney 
was  rendered,  he  should  have  notice  of  the  grounds  of  complaint  against 
him  and  ample  opportunity  of  explanation  and  defence,  and  that  this 
was  a rule  of  natural  justice  which  should  be  equally  followed  when  pro- 
ceedings are  taken  to  deprive  him  of  his  right  to  practice  his  profession, 
as  when  they  are  taken  to  reach  his  real  or  personal  property  ; observing 
that  the  principle  that  there  must  be  citation  before  hearing,  and  hearing 
or  opportunity  of  being  heard  before  judgment,  was  essential  to  the  se- 
curity of  all  private  rights,  and  without  its  observance  no  one  would  be 
safe  from  oppression  wherever  power  may  be  lodged. — (See  Ex-parte  Hey- 
fron,  7 Howard,  Mississippi,  127 ; People  vs.  Turner,  1 Cal.,  148  ; Beene  vs. 
The  State,  22  Ark.,  157  ; and  Fletcher  vs.  Daingerfield,  20  California,  430.) 

t 22  New  York,  81.  j 19  Howard,  9. 


case  the  Court  observed  that  “ it  has  been  well  settled  by  the  rules  and 
practice  of  Common-law  Courts,  that  it  rests  exclusively  with  the  Courts 
to  determine  Who  is  qualified  to  become  one  of  its  officers,  as  an  attorney 
and  counsellor,  and  for  what  cause  he  ought  to  be  removed,”* 

The  attorney  and  counsellor  being,  by  the  solemn  judicial  act  of  the 
Court,  clothed  with  his  office,  does  not  hold  it  as  a matter  of  grace  and 
favor.  The  right  which  it  confers  upon  him  to  appear  for  suitors,  and  to 
argue  causes,  is  something  more  than  a mere  indulgence,  revocable  at 
the  pleasure  of  the  Court,  or  at  the  command  of  the  Legislature.  It  is  a 
right  of  Which  he  can  only  be  deprived  by  the  judgment  of  the  Court  for 
moral  or  professional  delinquency. 

The  Legislature  may  undoubtedly  prescribe  qualifications  for  the  office, 
to  which  he  must  conform,  as  it  may,  where  it  has  exclusive  jurisdiction, 
prescribe  qualifications  for  the  pursuit  of  any  of  the  ordinary  avocations 
of  life.  The  question  in  this  case  is  not  as  to  the  power  of  Congress  to 
prescribe  qualifications,  but  whether  that  power  has  been  exercised  as  a 
means  for  the  infliction  of  punishment  against  the  prohibition  of  the  Con* 
stitution.  That  this  result  cannot  be  effected  indirectly  by  a State  under 
the  form  of  creating  qualifications  we  have  held,  in  the  case  of  Cum- 
mings vs.  The  St nie  of  Missouri , and  the  reasoning  by  which  that  conclu- 
sion  was  reached  applies  equally  to  similar  action  on  the  part  of  Con- 
gress. 

This  view  is  strengthened  by  a consideration  of  the  effect  of  the  pardon 
produced  by  the  petitioner,  and  the  nature  of  the  pardoning  power  of  the 
President. 

The  Constitution  provides  that  the  President  “ shall  have  pow'er  to 
grant  reprieves  and  pardons  for  offences  against  the  United  States,  ex- 
cept in  cases  of  impeach ment.”f 

The  power  thus  conferred  is  unlimited,  with  the  exception  stated.  It 
extends  to  every  offence  known  to  the  law,  and  may  be  exercised  at  any 
time  after  its  commission,  either  before  legal  proceedings  are  taken  or 
during  their  pendency,  or  after  conviction  and  judgment.  This  power 
of  the  President  is  not  subject  to  legislative  control.  Congress  can  neither 
limit  the  effect  of  his  pardon  nor  exclude  from  its  exercise  any  class  of 
offenders.  The  benign  prerogative  of  mercy  reposed  in  him  cannot  be 
fettered  by  any  legislative  restrictions. 

Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and  operation 
of  a pardon,  and  on  this  point  all  the  authorities  concur.  A pardon 
reaches  both  the  punishment  prescribed  for  the  offence  and  the  guilt  of 
the  offender;  and  when  the  pardon  is  full,  it  releases  the  punishment  and 


* But  when  the  Court  below  exceeds  its  jurisdiction,  and  disbars  an 
attorney  for  an  alleged  contempt  committed  in  its  presence  or  before  an- 
other Court,  mandamus  will  lie  from  the  Supreme  Court  to  restore  him  to 
his  office.  So  held  in  Ex-parte  Bradley,  7 Wallace,  and  in  Ex-parte  Rob- 
inson— Supra. 
f Article  II.,  'i  2. 


blots  out  of  existence  the  guilt,  so  that  in  the  eye  of  the  law  the  offender 
is  as  innocent  as  if  he  had  never  committed  the  offence.  If  granted  be- 
fore conviction,  it  prevents  any  of  the  penalties  and  disabilities  conse- 
quent upou  conviction  from  attaching;  if  granted  after  conviction,  it  re- 
moves the  penalties  and  disabilities,  and  restores  him  to  all  bis  civil 
rights;  it  makes  him,  as  it  were,  a new  man,  and  gives  him  a new  credit 
and  capacity. 

There  is  only  this  limitation  to  its  operation : it  does  not  restore  of- 
fices forfeited,  or  property  or  interests  vested  in  others  in  consequence  of 
the  conviction  and  judgment* 

The  pardon  produced  by  tlie  petitioner  is  a full  pardon  “ for  all  offences 
by  him  committed,  arising  from  participation,  direct  or  implied,  in  the 
Rebellion.”  and  is  subject  to  certain  conditions  which  have  been  complied 
with.  The  effect  of  this  pardon  is  to  relieve  the  petitioner  from  all  pen- 
alties and  disabilities  attached  to  the  offence  of  treason,  committed  by 
his  participation  in  the  Rebellion.  So  far  as  that  offence  is  concerned,  he 
is  thus  placed  beyond  the  reach  of  punishment  of  any  kind.  But  to  ex- 
clude him,  by  reason  of  that  offence,  from  continuing  in  the  enjoyment 
of  a previously  acquired  right,  is  to  enforce  a punishment  for  that  offence 
notwithstanding  the  pardon.  If  such  exclusion  can  be  effected  by  the 
exaction  of  an  expurgatory  oath  covering  the  offence,  the  pardon  may  be 
avoided,  and  that  accomplished  indirectly  which  cannot  be  reached  by 
direct  legislation.  It  is  not  within  the  constitutional  power  of  Congress 
thus  to  inflict  punishment  beyond  the  reach  of  executive  clemency. 
From  the  petitioner,  therefore,  the  oath  required  by  the  act  of  January 
24th,  1865,  could  not  be  exacted,  even  if  that  act  were  not  subject  to  any 
other  objection  than  the  one  thus  stated. 


*4  Blackstone’s  Commentaries,  402;  6 Bacon’s  Abridgment,  tit.  Par- 
don ; Hawkins,  book  2,  c.  37,  \\  34  and  54. 

In  Carlisle  vs.  The  United  States,  decided  at  the  December  Term.  1872, 
in  speaking  of  the  effect  of  the  proclamation  of  pardon  and  amnesty, 
made  by  the  President  on  the  25th  of  December,  1868,  upon  the  rights  of 
certain  parties,  who  had  given  aid  and  comfort  to  the  Rebellion,  and  who 
were  claimants  before  the  Court  of  Claims  of  the  proceeds  of  cotton 
seized  by  the  officers  of  the  United  States  and  turned  over  to  the  agents 
of  the  Treasury  Department,  the  Court  said:  “Assuming  that  they  [the 
claimants]  are  within  the  terms  of  the  proclamation,  the  pardon  and 
amnesty  granted  relieve  them  from  the  legal  consequences  of  their  par- 
ticipation in  the  Rebellion,  and  from  the  necessity  of  proving  that  the}' 
had  not  thus  participated,  which  otherwise  would  have  been  indispens- 
able to  a recovery.  It  is  true,  the  pardon  and  amnesty  do  not  and  cannot 
alter  the  fact  that  aid  and  comfort  were  given  by  the  claimants,  but  they 
forever  close  the  eyes  of  the  Court  to  the  perception  of  that  fact  as  an  element 
in  its  judgment , no  rights  of  third  parties  haring  intervened .” 

“ There  has  been  some  difference  of  opinion  among  the  members  of  the 
Court  as  to  cases  covered  by  the  pardon  of  the  President,  but  there  has 
been  none  as  to  the  effect  and  operation  of  a pardon  in  cases  where  it  ap- 
plies. All  have  agreed  that  the  pardon  not  merely  releases  the  offender 
from  the  punishment  prescribed  for  the  offence,  but  that  it  obliterates  in 
legal  contemplation  the  offence4itself.” — (16  Wallace,  151.) 


It  follows,  from  the  views  expressed,  that  the  prayer  of  the  petitioner 
must  be  granted.* 

The  case  of  R.  H.  Marr  is  similar,  in  its  main  features,  to  that  of  the 
petitioner,  and  his  petition  must  also  be  granted. 

And  the  amendment  of  the  second  rule  of  the  Court  which  requires  the 
oath  prescribed  by  the  act  of  January  24th,  1865,  to  be  taken  by  attor- 
neys and  counsellors,  having  been  unadvisedly  adopted,  must  he  re- 
scinded. 

And  it  is  so  ordered.! 


* The  President  granted  to  Garland  “ a full  pardon  and  amnesty  for  all 
offences  by  him  committed  arising  from  participation,  direct  or  implied, 
in  the  Rebellion.”  The  term  amnesty  is  not  found  in  the  Constitution, 
but  is  generally  used  to  denote  the  clemency  which  is  extended  to  a class 
of  persons  or  to  a whole  community.  Pardon  is  the  generic  term,  and  in- 
cludes every  species  of  executive  clemency,  individual,  general,  condi- 
tional, and  absolute,: — (See  The  Federalist,  No.  74;  U.  S.  vs.  Wilson,  7 
Peters,  150;  Ex-parte  Wells,  18  How.,  315.) 

f In  the  decision  of  these  two  cases,  Cummings  vs.  The  State  of  Mis- 
souri, and  Ex-parte  Garland,  Justices  Wayne,  Nelson,  Grier,  Clifford,  and 
Field  concurred.  Chief  Justice  Chase,  and  Justices  Swayne,  Miller,  and 
Davis  dissented.  Subsequently  the  Chief  Justice  expressed  his  concur- 
rence in  the  opinion  of  the  majority;  and  the  decision  was  followed  by 
the  entire  Court,  with  the  exception  of  Mr.  Justice  Bradley,  in  the  case 
of  Pierce  vs.  Carskadon,  decided  at  the  December  Term,  1872. — (16 
Wallace,  234. ) 


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